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CONSTITUTION 

of the 

UNITED STATES 

PART I 


INSTRUCTION PAPER 


PREPARED BY 

DAVID K. WATSON, A.B., LL.B., LL.D. 

* 

Former Attorney General of Ohio and Member 
of Congress. Author of “Watson on the 
Constitution of the United States” 


* •> > 


AMERICAN SCHOOL OF CORRESPONDENCE 

u 

CHICAGO ILLINOIS 

U.8.A. 













Copyright 1912 by 

American School of Correspondence 


Entered at Stationers’ Hall, London 
All Rights Reserved 







V 

Cl. A 3 0 5 7 $ ^ 



< 

CONTENTS 


PART I 

CHAPTER I 

Organization and General Powers of Congress 

PAGE 

1. The preamble.•. 1 

2. Division of powers.* X 

House of Representatives 

i 3. Qualifications of its members. 2 

* 4. Representatives and direct taxes. 2 

; 5. Power of House of Representatives. 3 

The Senate 

* 6. Appointment of members. 5 

j 7. Senate in constitutional convention. 6 

§ 8. Qualifications. 7 

§ 9. Vice President. 8 

§ 10. Officers of senate. 9 

§ 11. Senate tries all impeachments. 9 

Joint Powers 

§ 12. Election of senators and representatives. 12 

§ 13. Meetings of congress. 12 

§ 14. Each house judge of its members. 13 

§ 15. Journals of each house—yeas and nays. 15 

§ 16. Adjournment of congress during session. 16 

§ 17. Compensation. 16 

§ 18. Privileges. 17 

§ 19. Appointments to civil office. 18 

§ 20. Revenue bills. 19 

§ 21. Approval of bills by President. 20 

§ 22. Veto clause. 21 

CHAPTER II 
Express Powers of Congress 

§ 23. What are express powers. 26 

§ 24. Power to lay taxes.:. 26 

§ 25. To borrow money on the credit of the United States. 31 




























CONTENTS 


CHAPTER IX 

First Ten Amendments page 

§ 90. Bill of rights. 133 

§ 91. Introduction of amendments. 138 

§ 92. Consideration of amendments. 139 

CHAPTER X 

Scope and History of the First Amendment 

§ 93. Present form. 145 

§ 94. Original and subsequent forms. 145 

§ 95. Ratification. 147 

History of First Clause 

§ 96. Virginia’s Established Church bill. 147 

§ 97. Comments on the amendment. 150 

§ 98. Decisions respecting the establishment of religion. 151 

History of Second Clause 

§ 99. Liberty of press. 152 

History of Third Clause 

§100. Right to assemble and petition. 155 

CHAPTER XI 

Scope of Second, Third, and Fourth Amendments 

Second Amendment 

§101. Similar provisions in state constitutions. 157 

§102. Court decisions regarding scope. 158 

Third Amendment 

§103. Sources of amendment. 160 

§104. Purpose of amendment. 160 

Fourth Amendment 

§105. Source of amendment. 161 

§106. Unreasonable searches and seizures. 162 

§107. The warrant. 163 

§108. Inspection of books. 163 

§109. Congressional inquiries. 163 

PART III 

CHAPTER XII 
Fifth Amendment 

§110. First clause. 166 

§111. Second clause. 167 
























CONTENTS 

PAG® 

§112. Third clause. 169 

§113. Fourth clause. 171 

§114. Fifth clause.*. 173 

CHAPTER XIII 

Scope of Sixth, Seventh, Eighth, and Ninth Amendments 

Sixth Amendment 

§115. History. 177 

§116. Speedy trial. 178 

§117. Public trial. 179 

§118. Impartial jury. 180 

§119. Nature of accusation. 182 

§120. District where crime committed. 183 

§121. Witnesses against accused. 183 

§122. Assistance of counsel. 184 

Seventh Amendment 

§123. History and comments. 185 

§124. Suits at common law. 188 

§125. Jury trial. 188 

Eighth Amendment 

§126. Excessive bail. 190 

§127. Excessive fines. 190 

§128. What are not cruel and unusual punishments. 191 

§129. What are cruel and unusual punishments.. 191 

Ninth Amendment 

§130. Comments on amendment. 192 

CHAPTER XIV 

Scope of Tenth and Eleventh Amendments 

Tenth Amendment 

§131. History and comments. 194 

Summary and Discussion on First Ten Amendments 

§132. Van Buren’s tribute to Madison. 196 

§133. Limitations on Federal government. 197 

Eleventh Amendment 

§134. History and comments. 199 

§135. Rule for determining whether a suit is against a state. 202 

§136. What is not a suit against a state. 205 

CHAPTER XV 

Scope of the Twelfth and Thirteenth Amendments 

Twelfth Amendment 

§137. History. 208 

§138. Comparison of old and new plans. 212 





























CONTENTS 


Thirteenth Amendment page 

§139. History. 215 

§140. Effect of amendment. 217 

§141. Meaning of involuntary servitude. 218 

§142. Power to enforce the amendment. 219 

CHAPTER XVI 

Scope of the Fourteenth and Fifteenth Amendments 

Fourteenth Amendment 

§143. History. r 222 

§144. Proposed amendment. 223 

§145. General analysis of amendment. 227 

§146. Analysis of first section. 228 

§147. Analysis of second section. 231 

§148. Analysis of third section. 232 

§149. Analysis of fourth section. 233 

§150. Analysis of fifth section. 234 

Fifteenth Amendment 

§151. History. 236 

§152. This amendment does not confer right of suffrage. 239 

CHAPTER XVII 
Police Power 

§153. Attempt to include police power in the constitution. 241 

§154. Definition of police power. 243 

§155. Federal recognition of police power. 246 

§156. Proposed amendments affecting police power. 251 

§157, Federal authority for the exercise of police power. 253 























THE CONSTITUTION OF THE 
UNITED STATES 


- 9 - 

We, the people of the United States, in order to form a more perfect union, 
establish justice, insure domestic tranquillity, provide for the common defense, 
promote the general welfare, and secure the blessings of liberty to ourselves 
and our posterity, do ordain and establish this Constitution for the United 
States of America. 

ARTICLE I 

SECTION I 

All legislative powers herein granted shall be vested in a Congress of the 
United States, which shall consist of a Senate and House of Representatives. 

SECTION II 

The House of Representatives shall be composed of members chosen every 
second year by the people of the several States, and the electors in each State 
shall have the qualifications requisite for electors of the most numerous branch 
of the State legislature. 

No person shall be a Representative who shall not have attained the age of 
twenty-five years, and been seven years a citizen of the United States, and 
who shall not, when elected, be an inhabitant of that State in which he shall 
be chosen. 

Representatives and direct taxes shall be apportioned among the several 
States which may be included within this Union, according to their respective 
numbers, which shall be determined by adding to the whole number of free 
persons, including those bound to service for a term of years, and excluding 
Indians not taxed, three fifths of all other persons. The actual enumeration 
shall be made within three years after the first meeting of the Congress of the 
United States, and within every subsequent term of ten years, in such manner 
as they shall by law direct. The number of Representatives shall not exceed 
one for every thirty thousand, but each State shall have at least one Repre¬ 
sentative; and until such enumeration shall be made, the State of New Hamp¬ 
shire shall be entitled to choose three, Massachusetts eight, Bhode Island and 
Providence Plantations one, Connecticut five, New YorTc six, New Jersey four, 
Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina 
five, South Carolina five, and Georgia three. 

When vacancies happen in the representation from any State, the executive 
authority thereof shall issue writs of election to fill such vacancies. 

The House of Representatives shall choose their Speaker and other officers, 
and shall have the sole power of impeachment. 


1 







2 


CONSTITUTION OF THE UNITED STATES 


SECTION III 

The Senate of the United States shall be composed of two Senators from 
each State, chosen by the legislature thereof, for six years; and each Senator 
shall have one vote. 

Immediately after they shall be assembled in consequence of the first election, 
they shall be divided as equally as may be into three classes. The seats of 
the Senators of the first class shall be vacated at the expiration of the second 
year; of the second class, at the expiration of the fourth year, and of the 
third class, at the expiration of the sixth year, so that one-third may be chosen 
every second year; and if vacancies happen by resignation or otherwise during 
the recess of the legislature of any State, the executive thereof may make 
temporary appointment until the next meeting of the legislature, which shall 
then fill such vacancies. 

No person shall be a Senator who shall not have attained to the age of thirty 
years, and been nine years a citizen of the United States, and who shall not, 
when elected, be an inhabitant of that State for which he shall be chosen. 

I he A ice-President of the United States shall be President of the Senate, 
but shall have no vote, unless they be equally divided. 

The senate shall choose their other officers, and also a President pro teiivpore 
in the absence of the A'ice-President, or when he shall exercise the office of 
President of the United States. 

The Senate shall have the sole power to try all impeachments. AVhen sitting 
for that purpose, they shall be on oath or affirmation. AVhen the President of 
the United States is tried, the Chief Justice shall preside: and no person 
shall be convicted without the concurrence of two thirds of the members present. 

Judgment in cases of impeachment shall not extend further than to removal 
from office, and disqualification to hold and enjoy any office of honor, trust, 
or profit under the United States; but the party convicted shall, nevertheless, 

be liable and subject to indictment, trial, judgment, and punishment, accord¬ 
ing to law. 

SECTION IV 

The times, places, and manner of holding elections for Senators and Repre. 
sentatives shall be prescribed in each State by the legislature thereof; but the 
Congress may at any time by law make or alter such regulations, except as 
to the places of choosing Senators. 

The Congress shall assemble at least once in every year, and such meeting 

shall be on the first Monday in December, unless they shall by law appoint a 
different day. ‘ ^ 

section v 

Each house shall be the judge of the elections, returns, and qualifications 
of its own members, and a majority of each shall constitute a quorum to do 
business; but a smaller number may adjourn from day to day, and may be 
authorized to compel the attendance of absent members, in such manner and 
under such penalties, as each house may provide. 

Each house may determine the rules of its proceeding, punish its members 
tor disorderly behavior, and with the concurrence of two thirds expel 
member. > i <* 


3 


CONSTITUTION OF THE UNITED STATES 

Each house shall keep a journal of its proceedings, and from time to time 
publish the same, excepting such parts as may in their judgment require 
secrecy, and the yeas and nays of the members of either house on any question 
shall, at the desire of one fifth of those present, be entered on the journal. 

Neither house, during the session of Congress, shall, without the consent of 
the other, adjourn for more than three days, nor to any other place than that 
in which the two houses shall be sitting. 

SECTION VI 

The Senators and Representatives shall receive a compensation for their 
services, to be ascertained by law and paid out of the Treasury of the United 
States. They shall, in all cases except treason, felony, and breach of the 
peace, be privileged from arrest during their attendance at the session of their 
respective houses, and in going to and returning from the same; and for any 
speech or debate in either house they shall not be questioned in any other place. 

No Senator or Representative shall, during the time for which he was 
elected, be appointed to any civil office under the authority of the United 
States, which shall have been created, or the emoluments whereof shall have 
been increased during such time; and no person holding any office under the 
United States shall be a member of either house during his continuance in 
office. 

SECTION VII 

All bills for raising revenue shall originate in the House of Representatives; 
but the Senate may propose or concur with amendments as on other bills. 

Every bill which shall have passed the House of Representatives and the 
Senate shall, before it becomes a law, be presented to the President of the 
United States; if he approve he shall sign it, but if not he shall return it, 
with his objections, to that house in which it shall have originated, who shall 
enter the objections at large on their journal and proceed to reconsider it. 
If after such reconsideration tw T o thirds of that house shall agree to pass the 
bill, it shall be sent, together with the objections, to the other house, by w'hich 
it shall likewise be reconsidered, and if approved by two thirds of that house 
it shall become a law. But in all such cases the votes of both houses shall be 
determined by yeas and nays, and the names of the persons voting for and 
against the bill shall be entered on the journal of each house respectively. If 
any bill shall not be returned by the President within ten days (Sundays 
excepted) after it shall have been presented to him, the same shall be a law, 
in like manner as if he had signed it, unless the Congress by their adjourn¬ 
ment prevent its return, in which case it shall not be a law. 

Every order, resolution, or vote to which the concurrence of the Senate and 
House of Representatives may be necessary (except on a question of adjourn¬ 
ment) shall be presented to the President of the United States; and before 
the same shall take effect, shall be approved by him, or being disapproved by 
him, shall be repassed by two thirds of the Senate and House of Representa¬ 
tives, according to the rules and limitations prescribed in the case of a bill. 

SECTION VIII 

The Congress shall have power to lay and collect taxes, duties, imposts, and 
excises, to pay the debts and provide for the common defense and general 





4 CONSTITUTION OF THE UNITED STATES 

welfare of the Unitea States; but all duties, imposts, and excises shall be 
uniform throughout the United States; 

To borrow money on the credit of the United States; 

To regulate commerce with foreign nations and among the several States, 
and with the Indian tribes; 

To establish an uniform rule of naturalization, and uniform laws on the 
subject of bankruptcies throughout the United States; 

To coin money, regulate the value thereof, and of foreign coin, and fix the 
standard of weights and measures; 

To provide for the punishment of counterfeiting the securities and current 
coin of the United States; 

To establish post-offices and post-roads; 

To promote the progress of science and useful arts by securing for limited 
times to authors and inventors the exclusive right to their respective writings 
and discoveries; 

To constitute tribunals inferior to the Supreme Court; 

To define and punish piracies and felonies committed on the high seas and 
offenses against the law of nations; 

To declare war, grant letters of marque and reprisal, and make rules con¬ 
cerning captures on land and water; 

To raise and support armies, but no appropriation of money to that use shall 
be for a longer term than two years; 

To provide and maintain a navy; 

To make rules for the government and regulation of the land and naval 
forces; 

To provide for calling forth the militia to execute the laws of the Union, 
suppress insurrections, and repel invasions; 

To provide for organizing, arming, and disciplining the militia, and for gov¬ 
erning such part of them as may be employed in the service of the United 
States, reserving to the States respectively the appointment of the officers, 
and the authority of training the militia according to the discipline prescribed 
by Congress; 

To exercise exclusive legislation in all cases whatsoever over such district 
(not exceeding ten miles square) as may, by cession of particular States and 
the acceptance of Congress, become the seat of the Government of the United 
States, and to exercise like authority over all places purchased by the consent 
of the legislature of the State in which the same shall be, for the erection of 
forts, magazines, arsenals, dockyards, and other needful buildings; and 

To make all laws which shall be necessary and proper for carrying into 
execution the foregoing powers, and all other powers vested by this Constitu¬ 
tion in the Government of the United States, or in any department or officer 
thereof. 


SECTION IX 

The migration or importation of such persons as any of the States now 
existing shall think proper to admit shall not be prohibited by the Congress 
prior to the year one thousand eight hundred and eight, but a tax or duty may 
be imposed on such importation, not exceeding ten dollars for each person. 








CONSTITUTION OF THE UNITED STATES 


5 


The privilege of the writ of habeas corpus shall not be suspended, unless 
when in cases of rebellion or invasion the public safety may require it. 

No bill of attainder or ex post facto law shall be passed. 

No capitation or other direct tax shall be laid, unless in proportion to the 
census or enumeration hereinbefore directed to be taken. 

No tax or duty shall be laid on articles exported from any State. 

No preference shall be given by any regulation of commerce or revenue to 
the ports of one State over those of another; nor shall vessels bound to or 
from one State be obliged to enter, clear, or pay duties in another. 

No money shall be drawn from the Treasury but in consequence of appro¬ 
priations made by law; and a regular statement and account of the receipts 
and expenditures of all public money shall be published from time to time. 

No title of nobility shall be granted by the United States; and no person 
holding any office of profit or trust under them shall, without the consent of 
the Congress, accept of any present, emolument, office, or title, of any kind 
whatever, from any king, prince, or foreign State. 

section x 

No State shall enter into any treaty, alliance, or confederation; grant 
letters of marque and reprisal; coin money; emit bills of credit; make any¬ 
thing but gold and silver coin a tender in payment of debts; pass any bill 
of attainder, ex post facto law, or law impairing the obligation of contracts, 
or grant any title of nobilty. 

No State shall, without the consent of Congress, lay any imposts or duties 
on imports or exports, except what may be absolutely necessary for executing 
its inspection laws; and the net produce of all duties and imposts, laid by any 
State on imports or exports, shall be for the use of the Treasury of the United 
States; and all such laws shall be subject to the revision and control of the 
Congress. 

No State shall, without the consent of Congress, lay any duty of tonnage, 
keep troops or ships of war in time of peace, enter into any agreement or 
compact with another State or with a foreign power, or engage in war, unless 
actually invaded or in such imminent danger as will not admit of delay. 

ABTICLE II 

SECTION I 

The executive power shall be vested in a President of the United States of 
America. He shall hold bis office during the term of four years, and together 
with the Vice-President, chosen for the same term, be elected as follows: 

Each State shall appoint, in such manner as the legislature thereof may 
direct, a number of electors, equal to the whole number of Senators and Eep- 
resentatives to which the State may be entitled in the Congress; but no 
Senator or Eepresentative, or person holding an office of trust or profit under 
the United States, shall be appointed an elector. 

[The electors shall meet in their respective States and vote by ballot for two 
persons, of whom one at least shall not be an inhabitant of the same State with 
themselves. And they shall make a list of all the persons voted for, and of 


G 


CONSTITUTION OF THE UNITED STATES 


the number of votes for each; which list they shall sign and certify, and 
transmit sealed to the seat of government of the United States, directed to the 
President of the Senate. The President of the Senate shall, in the presence 
of the Senate and House of Representatives, open all the certificates, and the 
votes shall then be counted. The person having the greatest number of votes 
shall be the President, if such number be a majority of the whole number of 
electors appointed; and if there be more than one who have such majority, 
and have an equal number of votes, then the House of Representatives shall 
immediately choose by ballot one of them for President; and if no person have 
a majority, then from the five highest on the list the said House shall in like 
manner choose the President. But in choosing the President the votes shall be 
taken by States, the representation from each State having one vote; a 
quorum for this purpose shall consist of a member or members from two thirds 
of the States, and a majority of all the States shall be necessary to a choice. 
In every case, after the choice of the President, the person having the greatest 
number of votes of the electors shall be the Vice-President. But if there 
should remain two or more who have equal votes, the Senate shall choose from 
them by ballot the Vice-President.]* 

The Congress may determine the time of choosing the electors and the day 
on which they shall give their votes, which day shall be the same throughout 
the United States. 

No person except a natural-born citizen, or a citizen of the United States 
at the time of the adoption of this Constitution, shall be eligible to the office 
of President; neither shall any person be eligible to that office who shall not 
have attained to the age of thirty-five years, and been fourteen years a resident 
•within the United States. 

In case of the removal of the President from office, or of his death, resigna¬ 
tion, or inability to discharge the powers and duties of the said office, the same 
shall devolve on the Vice-President, and the Congress may by law provide for 
the case of removal, death, resignation, or inability, both of the President and 
Vice-President, declaring what officer shall then act as President, and such 
officer shall act accordingly until the disability be removed or a President 
shall be elected. 

The President shall, at stated times, receive for his services a compensation, 
which shall neither be increased nor diminished during the period for which 
he may have been elected, and he shall not receive wdthin that period any other 
emolument from the United States or any of them. 

Before he enter on the execution of his office he shall take the following 
oath or affirmation: 

“I do solemnly swear (or affirm) that I will faithfully execute the office 
of President of the United States, and w r ill to the best of my ability preserve, 
protect, and defend the Constitution of the United States .’’ 

SECTION II 

The President shall be Commander-in-chief of the Army and Navy of the 
United States, and of the militia of the several States when called into the 
actual service of the United States; he may require the opinion, in writing, of 

♦This clause of the Constitution has been amended. See twelfth article of the 
amendments. 



CONSTITUTION OF THE UNITED STATES 


IV 

( 


the principal officer in each of the executive departments, upon any subject 
relating to the duties of their respective offices, and he shall have power to 
grant reprieves and pardons for offenses against the United States, except in 
cases of impeachment. 

He shall have power, by and with the advice and consent of the Senate, to 
make treaties, provided two thirds of the Senators present concur; and he 
shall nominate, and, by and with the advice and consent of the Senate, shall 
appoint ambassadors, other public ministers • and consuls, judges of the 
Supreme Court, and all other officers of the United States, whose appointments 
are not herein otherwise provided for, and which shall be established by law; 
but the Congress may by law vest the appointment of such inferior officers, as 
they think proper, in the President alone, in the courts of law, or in the heads 
of departments. 

The President shall have power to fill up all vacancies that may happen dur¬ 
ing the recess of the Senate, by granting commissions which shall expire at the 
end of their next session. 

SECTION III 

He shall from time to time give to the Congress information of the state 
of the Union, and recommend to their consideration such measures as he shall 
judge necessary and expedient; he may, on extraordinary occasions, convene 
both houses, or either of them, and in case of disagreement between them with 
respect to the time of adjournment, he may adjourn them to such time as he 
shall think proper; he shall rective ambassadors and other public ministers; 
he shall take care that the laws be faithfully executed, and shall commission 
all the officers of the United States. 

SECTION IV 

The President, Vice-President, and all civil officers of the United States 
shall be removed from office on impeachment for and conviction of treason, 
bribery, or other high crimes and misdemeanors. 

AKTICLE III 

SECTION I 

The judicial power of the United States shall be vested in one Supreme 
Court, and in such inferior courts as the Congress may from time to time 
ordain and establish. The judges, both of the supreme and inferior courts, 
shall hold their offices during good behavior, and shall, at stated times, receive 
for their services a compensation which shall not be diminished during their 
continuance in office. 

SECTION II 

The judicial power shall extend to all cases, in law and equity, arising 
under this Constitution, the laws of the United States, and treaties made, or 
which shall be made, under their authority; to all cases affecting ambassadors, 
other public ministers, and consuls; to all cases of admiralty and maritime 
jurisdiction; to controversies to wffiich the United States shall be a party; to 
controversies between two or more States; between a State and citizen of 
another State; between citizens of different States; between citizens of the 




8 


CONSTITUTION OF THE UNITED STATES 


same State claiming lands under grants of different States, and between a 
State, or the citizens thereof, and foreign States, citizens, or subjects. 

In all cases affecting ambassadors, other public ministers and consuls, and 
those in which a State shall be a party, the Supreme Court shall have original 
jurisdiction. In all the other cases before mentioned the Supreme Court shall 
have appellate jurisdiction, both as to law and fact, with such exceptions and 
under such regulations as the Congress shall make. 

The trial of all crimes, except in cases of impeachment, shall be by jury; 
and such trial shall be held in the State where the said crimes shall have been 
committed; but when not committed within any State, the trial shall be at 
such place or places as the Congress may by law have directed. 

SECTION III 

Treason against the United States shall consist only in levying war against 
them, or in adhering to their enemies, giving them aid and comfort. No 
person shall be convicted of treason unless on the testimony of two witnesses 
to the same overt act, or on confession in open court. 

The Congress shall have power to declare the punishment of treason, but no 
attainder of treason shall work corruption of blood or forfeiture except dur¬ 
ing the life of the person attainted. 

ARTICLE IV 

SECTION I 

Full faith and credit shall be given in each State to the public acts, records, 
and judicial proceedings of every other State. And the Congress may by 
general laws prescribe the manner in which such acts, records, and proceedings 
shall be proved, and the effect thereof. 

SECTION II 

The citizens of each State shall be entitled to all privileges and immunities 
of citizens in the several States. 

A person charged in any State with treason, felony, or other crime, who 
shall flee from justice, and be found in another State, shall, on demand of the 
executive authority of the State from which he fled, be delivered up, to be 
removed to the State having jurisdiction of the crime. 

No person held to service or labor in one State, under the laws thereof, • 
escaping into another, shall, in consequence of any law or regulation therein, 
be discharged from such service or labor, but shall be delivered up on claim 
of the party to whom such service or labor may be due. 

SECTION III 

New States may be admitted by the Congress into this Union; but no new 
State shall be formed or erected within the jurisdiction of any other State; 
nor any State be formed by the junction of two or more States or parts of 
States, without the consent of the legislatures of the States concerned as well 
as of the Congress. 

The Congress shall have power to dispose of and make all needful rules and 


CONSTITUTION OF THE UNITED STATES 


9 


regulations respecting the territory or other property belonging to the United 
States; and nothing in this Constitution shall be so construed as to prejudice 
any claims of the United States or of any particular State. 

SECTION IV 

The United States shall guarantee to every State in this Union a republican 
form of government, and shall protect each of them against invasion, and on 
application of the legislature, or of the executive (when the legislature cannot 
be convened), against domestic violence. 


ARTICLE V 

The Congress, whenever two thirds of both houses shall deem it necessary, 
shall propose amendments to this Constitution, or, on the application of the 
legislatures of two thirds of the several States, shall call a convention for 
proposing amendments, which in either case shall be valid to all intents and 
purposes as part of this Constitution, when ratified by the legislatures of 
three fourths of the several States, or by conventions in three fourths thereof, 
as the one or the other mode of ratification may be proposed by the Congress, 
provided that no amendments which may be made prior to the year one thou¬ 
sand eight hundred and eight shall in any manner affect the first and fourth 
clauses in the ninth section of the first article; and that no State, without its 
consent, shall be deprived of its equal suffrage in the Senate. 

ARTICLE VI 

All debts contracted and engagements entered into, before the adoption of 
this Constitution, shall be as valid against the United States under this Con¬ 
stitution as under the confederation. 

This Constitution, and the laws of the United States which shall be made 
in pursuance thereof, and all treaties made, or which shall be made, under the 
authority of the United States, shall be the supreme law r of the land; and the 
judges in every State shall be bound thereby, anything in the Constitution or 
laws of any State to the contrary notwithstanding. 

The Senators and Representatives before mentioned, and the members of 
the several State legislatures, and all executive and judicial officers both of 
the United States and of the several States, shall be bound by oath or affirma¬ 
tion to support this Constitution; but no religious test shall ever be required 
as a qualification to any office or public trust under the United States. 

ARTICLE VII 

The ratification of the conventions of nine States shall be sufficient for the 
establishment of this Constitution between the States so ratifying the same. 

Done in convention by the unanimous consent of the States present, the 
seventeenth day of September, in the year of our Lord one thousand seven 
hundred and eighty-seven, and of the independence of the United States 
of America the twelfth. In witness whereof, we have hereunto subscribed 


our names. 



10 


CONSTITUTION OF THE UNITED STATES 


George Washington, President, and Deputy from Virginia. 

New Hampshire —John Langdon, Nicholas Gilman. 

Massachusetts —Nathaniel Gorham, Eufus King. 

Connecticut —William Samuel Johnson, Roger Sherman. 

New York —Alexander Hamilton. 

New Jersey —William Livingston, David Brearly, William Patterson, Jonathan 
Dayton. 

Pennsylvania —Benjamin Franklin, Thomas Mifflin, Kobert Morris, George 
Clymer, Thomas Fitzsimons, Jared Ingersoll, James Wilson, Gouverneur 
Morris. 

Delaware —George Bead, Gunning Bedford, Jr., John Dickinson, Richard 
Bassett, Jacob Broom. 

Maryland —James McHenry, Daniel of St. Thomas Jenifer, Daniel Carroll. 

Virginia —John Blair, James Madison, Jr. 

North Carolina —William Blount, Richard Dobbs Spaight, Hugh Williamson. 

South Carolina —John Rutledge, Charles Cotesworth Pinckney, Charles Pinck¬ 
ney, Pierce Butler. 

Georgia —William Few, Abraham Baldwin. 

Attest: William Jackson, Secretary. 


MENDMENTS 
ARTICLE I 

Congress shall make no law respecting an establishment of religion, or 
prohibiting the free exercise thereof; or abridging the freedom of speech or 
of the press; or the right of the people peaceably to assemble, and to petition 
the government for a redress of grievances. 

ARTICLE II 

A well-regulated militia being necessary to the security of a free State, the 
right of the people to keep and bear arms shall not be infringed. 

ARTICLE III 

No soldier shall, in time of peace, be quartered in any house without the 
consent of the owner, nor in time of war, but in a manner to be prescribed 
by law. 

ARTICLE IV 

The right of the people to be secure in their persons, houses, papers, and 
effects, against unreasonable searches and seizures, shall not be violated, and 
no warrants shall issue but upon probable cause, supported by oath or affirma¬ 
tion, and particularly describing the place to be searched, and the person or 
things to be seized. 



CONSTITUTION OF THE UNITED STATES 

AETICLE Y 


11 


No person shall be held to answer for a capital or otherwise infamous 
crime, unless on a presentment or indictment of a grand jury, except in cases 
arising in the land or naval forces, or in the militia, when in actual service in 
time of war or public danger; nor shall any person be subject for the same 
offense to be twice put in jeopardy of life or limb; nor shall be compelled in 
any criminal case to be a witness against himself, nor be deprived of life, 
liberty, or property, without due process of law; nor shall private property be 
taken for public use without just compensation. 

AETICLE VI 

In all criminal prosecutions the accused shall enjoy the right to a speedy 
and public trial, by an impartial jury of the State and district wherein the 
crime shall have been committed, which district shall have been previously 
ascertained by law, and to be informed of the nature and cause of the accusa¬ 
tion; to be confronted with the witnesses against him; to have compulsory 
process for obtaining witnesses in his favor, and to have the assistance of 
counsel for his defense. 

AETICLE VII 

In suits at common law, where the value in controversy shall exceed twenty 
dollars, the right of trial by jury shall be preserved, and no fact tried by a 
jury shall be otherwise re-examined in any court of the United States, than 
according to the rules of the common law. 

AETICLE VIII 

Excessive bail shall not be required, nor excessive fines imposed, nor cruel 
and unusual punishments inflicted. 

AETICLE IX 

The enumeration in the Constitution of certain rights shall not be construed 
to deny or disparage others retained by the people. 

AETICLE X 

The powders not delegated to the United States by the Constitution, nor 
prohibited by it to the States, are reserved to the States respectively or to 
the people. 

AETICLE XI 

The judicial power of the United States shall not be construed to extend to 
any suit in law or equity, commenced or prosecuted against one of the United 
States by citizens of another State, or by citizens or subjects of any foreign 
State. 

AETICLE XII 

The electors shall meet in their respective States and vote by ballot for 
President and Vice-President, one of whom, at least, shall not be an inhabitant 
of the same State with themselves; they shall name in their ballots the person 



12 CONSTITUTION OF THE UNITED STATES 

voted for as President, and in distinct ballots the person voted for as Vice- 
President, and they shall make distinct lists of all persons voted for as Presi- 
dent and of all persons voted for as Vice-President, and of the number of 
votes for each; which lists they shall sign and certify, and transmit sealed 
to the seat of the government of the United States, directed to the President 
of the Senate. The President of the Senate shall, in the presence of the 
Senate and House of Representatives, open all the certificates and the votes 
shall then be counted. The person having the greatest number of votes for 
President shall be the President, if such number be a majority of the whole 
number of electors appointed; and if no person have such majority, then from 
the persons having the highest numbers not exceeding three on the list of 
those voted for as President, the House of Representatives shall choose imme¬ 
diately, by ballot, the President. But in choosing the President the votes shall 
be taken by States, the representation from each State having one vote; a 
quorum for this purpose shall consist of a member or members from two 
thirds of the States, and a majority of all the States shall be necessary to a 
choice. And if the House of Representatives shall not choose a President 
whenever the right of choice shall devolve upon them, before the fourth day 
of March next following, then the Vice-President shall act as President, as in 
the case of the death or other constitutional disability of the President. 

The person having the greatest number of votes as Vice-President shall be 
the Vice-President, if such number be a majority of the whole number of 
electors appointed; and if no person have a majority, then from the two 
highest numbers on the list the Senate shall choose the Vice-President; a 
quorum for the purpose shall consist of two thirds of the whole number of 
Senators, and a majority of the whole number shall be necessary to a choice 
But no person constitutionally ineligible to the office of President shall be 
eligible to that of Vice-President of the United States. 


ARTICLE XIII 

Section 1. Neither slavery nor involuntary servitude, except as a punish¬ 
ment for crime whereof the party shall have been duly convicted, shall exist 
within the United States or any place subject to their jurisdiction. 

Section 2. Congress shall have power to enforce this article by appropriate 
legislation. 

ARTICLE XIV 

Section 1. All persons born or naturalized in the United States, and subject 
to the jurisdiction thereof, are citizens of the United States and of the State 
wherein they reside. No State shall make or enforce any law which shall 
abridge the privileges or immunities of citizens of the United States; nor shall 
any State deprive any person of life, liberty, or property, without due process 
of law; nor deny to any person within its jurisdiction the equal protection of 
the laws. 

Section 2. Representatives shall be apportioned among the several States 
according to their respective numbers, counting the whole number of persons 
in each State, excluding Indians not taxed. But when the right to vote at any 
election for the choice of electors for President and Vice-President of the 


CONSTITUTION OF THE UNITED STATES 13 

United States, Representatives in Congress, the executive and judicial officers 
of a State, or the members of the legislature thereof, is denied to any of the 
male inhabitants of such State, being twenty-one years of age, and citizens 
of the United States, or in any way abridged, except for participation in 
rebellion, or other crime, the basis of representation therein shall be reduced 
in the proportion which the number of such male citizens shall bear to the 
whole number of male citizens twenty-one years of age in such State. 

Section 3. No person shall be a Senator or Representative in Congress, or 
elector of President and Vice-President, or hold any office, civil or military, 
under the United States or under any State, w’ho, having previously taken an 
oath as a member of Congress, or as an officer of the United States, or as a 
member of any State legislature, or as an executive or judicial officer of any 
State, to support the Constitution of the United States, shall have engaged 
in insurrection or rebellion against the same, or given aid or comfort to the 
enemies thereof. But Congress may, by a vote of two thirds of each house, 
remove such disability. 

Section 4. The validity of the public debt of the United States, authorized 
by law, including debts incurred for payment of pensions and bounties for 
services in suppressing insurrection or rebellion, shall not be questioned. But 
neither the United States nor any State shall assume or pay any debt or 
obligation incurred in aid of insurrection or rebellion against the United 
States, or any claim for the loss or emancipation of any slave; but all such 
debts, obligations, and claims shall be held illegal and void. 

Section 5. The Congress shall have power to enforce, by appropriate legis¬ 
lation, the provisions of this article. 

ARTICLE XV 

Section 1. The right of citizens of the United States to vote shall not be 
denied or abridged by the United States or by any State on account of race, 
color, or previous condition of servitude. 

Section 2. The Congress shall have power to enforce this article by appro¬ 
priate legislation. 






CONSTITUTION OF THE 
UNITED STATES 


PART I 
CHAPTER I 

ORGANIZATION AND GENERAL POWERS 

OF CONGRESS 

§ 1. The Preamble. The purposes of the Constitution 
of the United States are expressed in the Preamble of that 
great instrument as follows: 

“To form a more perfect Union, establish Justice, insure 
Domestic tranquility, provide for the Common Defense, 
promote the General Welfare, and secure the Blessings of 
Liberty to ourselves and our Posterity.” 

The authorship of the preamble cannot be determined 
with accuracy, though Hamilton was influential in framing 
it. It was not agreed upon by the Convention which framed 
the Constitution until shortly before that body adjourned. 
It is not a part of the Constitution, but only indicates the 
objects which that instrument was designed to accomplish. 

§ 2. Division of Powers. The first article of the Consti¬ 
tution treats of the legislative powers of Congress, the 
qualifications of Representatives and Senators, the manner 
of their election and compensation, and the origin of 
revenue bills, and enumerates the powers which Congress 
may exercise, as well as those which it is prohibited from 
exercising, and the prohibitions against the States. 

The legislative powers of the government are vested in 
Congress—a term used to represent the lawmaking branch 

Copyright, 1912, by American School of Correspondence. 1 




2 


CONSTITUTION OF THE UNITED STATES 


of the government, and which is composed of two branches, 
the House of Representatives and the Senate. 


HOUSE OF REPRESENTATIVES 

The Constitution of New Hampshire, made in 1775-1776, 
used the term “House of Representatives” and the name 
was probably taken from that instrument by the framers 
of the Federal Constitution and applied to the lower 
branch of Congress. The House of Representatives is that 
branch of Congress to which members are elected every two 
years and is commonly referred to as “the lower branch of 
Congress . 9 9 The members are elected by the people of their 
respective districts. Any elector qualified to vote for mem¬ 
bers of the lower branch of his State legislature can vote 
for a member of the House of Representatives. 

§3. Qualifications of Its Members. A representative 
must possess three qualifications: First, he must be twenty- 
five years of age; second, he must have been a citizen of the 
United States for seven years; and third, he must be an 
inhabitant of the State “from which he shall be chosen.” 
The word “person” as used in this section does not include 
a woman. 

Generally speaking, a “citizen” is one who owes allegi¬ 
ance to the government in which he lives, who is entitled 
to represent it and is entitled to its protection. The word 
“inhabitant” under this section has been held to mean 
“one who is a bona fide member of the State, subject to all 
the requisitions of its laws, and entitled to all the privileges 
and advantages which they confer.” 

It is not within the power of a State, or of Congress to 
add new or additional qualifications for Representatives 
or Senators. The qualifications for membership in those 
bodies having been fixed by the Constitution, they can only 
be changed by an amendment to that instrument. 

§ 4. Representatives and Direct Taxes. Representatives 
and direct taxes must be apportioned among the several 
States, in proportion to their respective numbers, but each 
State is entitled to one representative. The matter of 


CONSTITUTION OE THU UNITED STATES 


tK 

O 


apportioning direct taxes according to numbers was sug¬ 
gested in the Constitutional Convention by Mr. Gouveneur 
Morris, and caused a spirited debate in that body. This 
clause is the basis on which the decennial apportionment 
for representatives is based. The question: What are direct 
taxes? was first passed upon by the Supreme Court of the 
United States in 1796. The question has caused the courts 
much trouble, and is still open to some doubt, though the 
courts have often considered it; but it is held that taxes 
upon real estate are direct taxes. 

Vacancies in Representation. When a vacancy occurs 
in the representation of a State, it is filled by the Governor 
of such State issuing a writ for an election by the electors 
of the district to fill the vacancy. Vacancies within the 
provisions of this clause may be caused by death, resig¬ 
nation, moving out of the State, or the occupation of 
another office inconsistent with that of Representative. 

§ 5. Power of House of Representatives. The Constitu¬ 
tion confers upon the House of Representatives the power 
to choose its Speaker, and such other officers as it decides 
to have. A clause similar to this was in the Constitution 
of Maryland at the time the Federal Constitution was 
framed, and it is quite probable that it was the origin of 
the present clause. The Speaker is the only officer which 
the Constitution requires the House of Representatives to 
choose. It permits the House itself to decide upon the 
number and position of the other officers it will have. In 
pursuance of this power, the House has created the offices 
of Clerk, Sergeant at Arms, Door Keeper, Postmaster, and 
Chaplain. Each of these, like the Speaker, is elected by 
the members of the House. It is the Speaker’s duty to 
preside over the deliberations of the House, but he can call 
some member to preside in his place at any time he desires 
to do so. There is no Constitutional definition of the 
Speaker’s power; it is largely determined by the rules 
which the House adopts. Formerly it was very great, but 
the Sixty-Second Congress adopted new rules, which 
greatly curtailed it. 



4 


CONSTITUTION OF THE UNITED STATES 


Impeachment. The House of Representatives is the only 
body, under the Constitution, which can impeach an officer 
of the Government. None but civil officers can be im¬ 
peached. Impeachment is a written accusation or charge 
presented by the House of Representatives, to the Senate, 
against a civil officer of the United States, and a majority 
of a quorum of the members of that body must vote for 
the impeachment. The object of an impeachment is to 
punish those civil officers of the Government who are guilty 
of wrongdoing, in the discharge of their official duties. It 
is generally used to punish offenses which in their nature 
are of a political character. On the subject of impeach¬ 
ments Judge Story says: 

4 ‘They are conducted by the representatives of the Nation, 
in their public capacity, in the face of the Nation and upon 
a responsibility which is at once felt and reverenced by the 
whole community. The notoriety of the proceedings, the 
solemn manner in which they are conducted, the deep extent 
to which they affect the reputations of the accused, the 
ignominy of a conviction which is to be known through all 
time, and the glory of an acquittal which ascertains and 
confirms innocence, these are all calculated to produce a 
vivid and lasting interest in the public mind, and to give to 
such prosecutions, when necessary, a vast importance, both 
as a check to crime and an incitement to virtue.” 

An impeachment resembles an indictment, but less accu¬ 
racy and formality are required in such proceedings than 
under an indictment, or an information. 

The Senate tries the impeached officer as a court tries 
one who is under indictment; for this reason the Senate is 
frequently referred to as a “court of impeachment.” 
There is no Constitutional provision defining what shall 
amount to an impeachable offense. The House of Repre¬ 
sentatives may, therefore, impeach for any offense which 
it considers should be punished in that way. This method 
of punishment has been resorted to, to reach officers of 
high position who cannot be punished under the criminal 
statutes. Even when a criminal statute covers the offense, 
impeachment can also be had. 


5 


CONSTITUTION OF THE UNITED STATES 

No Senator can be excused from voting on the guilt or 
innocence of the impeached, no matter what are his rela¬ 
tions to the accused. The Constitution provides, “the 
Senate shall have the sole power to try all impeachments,” 
and if a Senator could be excused from sitting as a member 
on the trial, or from voting, it might defeat the jurisdiction 
of the Senate, for the challenge might be so frequently used 
that it would prevent the Constitutional majority. 

There can be no impeachment after the expiration of the 
term of office during which the offense was committed, but 
an offender may be impeached, while serving a second term, 
for offenses he committed during his preceding term. 

THE SENATE 

§ 6. Apportionment of Members. The Senate is the 
upper branch or house of Congress, as it is usually called. 
It differs in many important respects from the House of 
Representatives. In the Senate each State is entitled to 
two members, and no more, whereas, as we have seen, in 
the House or lower branch of Congress, each State is en¬ 
titled to members according to the population of the State. 
This results in some States having only one Representa¬ 
tive, but two Senators—an anomalous condition, but per¬ 
missible under the Constitution. The reason is that Repre¬ 
sentatives represent the people, a certain number of whom 
are entitled to elect a Representative, and some States have 
such small population as to entitle them to only one mem¬ 
ber in the House of Representatives, while the Senators 
represent the States in their sovereign capacit)^ as distinct 
and separate from the people, and each State, however 
small its population, is entitled to an equal number of 
Senators with every other State, no matter how large its 
population may be. Thus it happens that several States 
in the Federal Union are only entitled to one representative 
each, while others are entitled to a very large number; yet 
in the Senate they have the same number of members. The 
Senators are elected by the legislatures of each State, while 
the Representatives are elected by the people. Another 




6 


CONSTITUTION OF THE UNITED STATES 


distinction is, that Senators are elected for a period of six 
years, while Representatives are only elected for two 
years. 

§ 7. Senate in Constitutional Convention. In the Consti¬ 
tutional Convention the formation of the Senate received 
much consideration. That body attached great importance 
to the office and position of Senator. It was designed that 
Senators should be men of great character and influence, 
in whom the people placed special confidence because of 
their virtues. Much diversity of opinion prevailed in the 
Convention concerning the manner of electing the Senators, 
but it was finally agreed that they should be elected by the 
legislatures of the States and not directly by the people. 
It was also contended in the Convention that each State 
should have only one vote in the Senate, but the matter 
was settled by inserting the provision in the Constitution 
that “each Senator should have one vote.” The legisla¬ 
tures of some of the States have from time to time under¬ 
taken to instruct their Senators how to vote on certain 
measures pending in the Senate, although there is nothing 
in the Constitution which authorizes or justifies a legis¬ 
lature in taking such action. It has at several times oc¬ 
curred when a Senator felt he could not vote in compliance 
with instructions from his legislature that he resigned his 
seat. John Tyler, a Senator from Virginia, and afterwards 
President of the United States, resigned in .preference to 
voting on certain measures in obedience to the instructions 
of his legislature. John Q. Adams, a Senator from Mas¬ 
sachusetts, and later President of the United States, also 
resigned as Senator for a similar reason. Others like Sena¬ 
tor Lamar of Mississippi, have refused to resign under simi¬ 
lar circumstances and on appeal to the people their stand 
has been approved. 

Division into Classes. The Constitution requires that 
the Senators, immediately after the first election should be 
divided into three classes, and that the seats of those of 
the first class should become vacant at the end of two 
years, of the second class at the end of the fourth year, 


CONSTITUTION OF THE UNITED STATES 


7 


and the third class at the end of the sixth year. As the 
Constitution did not make any provision as to the mode of 
dividing the Senators into classes, the Senate on the 14th 
of May, 1789, appointed a committee to report a mode to 
that body of carrying this provision into effect. As a 
result of the committee’s report the Senate passed a reso¬ 
lution that the members be divided into three classes. 
There being but nineteen Senators present, the first class 
consisted of six Senators, the second class, of seven, and 
the third class, of six. Three papers of equal size, num¬ 
bered one, two, and three, were rolled up by the Secretary 
of the Senate, put into a box and drawn by a Committee 
of Three, one of whom was chosen from each class. The 
Senators vacated their seats in the Senate according to the 
order of numbers drawn from the box, beginning with num¬ 
ber one. 1 The object of this provision of the Constitution 
was to secure the election of new Senators every third year. 

Vacancies in Office. When a vacancy occurs in the mem¬ 
bership of the Senate during the recess of the State legis¬ 
lature, the Governor of the State may fill the vacancy by 
appointment, but the appointee can only hold his Senator- 
ship until the next meeting of the legislature, which must 
elect a Senator. If the vacancy in the Senate occurs while 
the State legislature is in session, the Governor has no 
authority to fill it by appointment, but it is filled by an 
election. The Governor of a State is not required by the 
Constitution to fill a vacancy, but he seldom fails to do so. 
When two Senators from a State just admitted into the 
Union appear in the Senate, their respective terms are set¬ 
tled just as they were by the original classification, so that, 
thereafter, two vacancies will not occur at the same time. 

§ 8. Qualifications. The Constitution provides the same 
number of qualifications for a Senator that it does for a 
Representative—age, citizenship, and inhabitancy in the 
State for which he is chosen. The age is fixed at thirty 
years. The Constitution does not say when a Senator 
should be thirty years of age. But it says that no one 

i Annals 36, 37. 


8 


CONSTITUTION OF THE UNITED STATES 


shall be a Senator who lias not attained the age of thirty 
years. This indicates that he should be of that age at the 
time he takes the oath of Senator, and not at the time he 
is elected. The same can be said of a Representative in 
Congress. Henry Clay is perhaps the only person who 
served as a Senator before he was thirty years of age. 
The second qualification for a Senator is that he must have 
been nine years a citizen of the United States. Several 
very interesting cases have arisen under this clause, among 
them that of Albert Gallatin of Pennsylvania, and Mr. 
Revels of Mississippi. Gallatin was a Swiss who came to the 
United States in 1780. Five years later he moved to Penn¬ 
sylvania, where he lived until 1793, when he was elected a 
member of the United States Senate. He held the position 
for one year, when it was decided that he had not been a 
citizen of the United States for the required time, and 
consequently was ineligible to the office. 

Revels was a negro, who was born a slave. Under the 
Emancipation Proclamation of President Lincoln he had 
been given his freedom, and under the provisions of the 
Fourteenth Amendment had become a citizen, but the 
period of nine years not having intervened between the 
date of his being made free and his becoming a citizen, 
it was claimed that he was not eligible to be a Senator. 
The Senate, however, decided that he was, and gave him 
his seat. 

The third and last qualification prescribed for a Senator 
is that he must be an inhabitant of the State for which he 
shall be chosen. The meaning of the term “ inhabitant ’ ’ 
under this clause is the same as under the clause providing 
for the qualifications of a Representative, which has been 
considered. The possession of these qualifications are 
fundamental, and absolutely necessary, before one can 
become a member of the Senate. 

A State cannot add new qualifications for Senators to 
those enumerated in the Constitution, nor can it require 
qualifications which would conflict with those prescribed. 

§ 9. Vice President. The Vice President is President of 


CONSTITUTION OF THE UNITED STATES 


9 


the Senate. In many of the States at the time the Consti¬ 
tution was framed, the officer now called Lieutenant Gov¬ 
ernor was called “Vice President”, and succeeded to the 
Governorship in case there was a vacancy in that office, 
and it was his official duty to preside over the State Senate. 
This probably was why the term “Vice President” was 
adopted by the framers of the Constitution. No country 
has any officer corresponding to that of Vice President 
under the Constitution of the United States. There was 
much objection in the Convention to the creation of such a 
position, and there is no provision for filling the office in 
case of a vacancy in it. The Vice President is not a mem¬ 
ber of the Senate; and this was urged as a reason why 
he should not preside over that body. He has no vote 
in the Senate unless the Senators be equally divided. 
His deciding vote has been on more than one occasion 
momentous. 

§ 10. Officers of Senate. The Constitution does not pro¬ 
vide for any of the officers of the Senate except that 
of Vice President. The other officers of that body, like 
those of the House of Representatives, are created by the 
Senate, and are elected by the members thereof. They con¬ 
sist of a Secretary, Chief Clerk, Executive Clerk, Sergeant 
at Arms, Door Keeper and Chaplain. The Senate also has a 
President pro tempore who is elected by the Senators. It 
is his duty to preside over the deliberations of the Senate in 
the absence of or disqualification of the Vice President. The 
first day the first Senate met it elected John Langdon of 
New Hampshire, President pro tempore. 

§ 11. Senate Tries All Impeachments. There was con¬ 
siderable opposition in the Constitutional Convention to 
conferring the power to try impeachments on the Senate, 
and this feeling also existed in several of the State con¬ 
ventions. It was thought by some of the members of the 
convention that impeachments should be tried by the 
Supreme Court, while others thought the Court and Sen¬ 
ators together ought to hear and try them. Some favored 
a separate tribunal for the purpose, but the power was 




10 


CONSTITUTION OF THE PNITED STATES 


finally given to the Senate alone. Alexander Hamilton, in 
the sixty-fifth number of the Federalist has shown the 
wisdom of this provision. 

When sitting to try an impeached officer, the Senators 
must swear or affirm 


“That in all things appertaining to the trial of the 

impeachment of.I will do impartial justice according 

to the Constitution and laws, so help me God.” 

If the President of the United States is impeached, the 
trial must be presided over by the Chief Justice of the 
Supreme Court. This provision was inserted in order to 
relieve the Vice President of the delicacy of his position 
in the event of his presiding, and to remove all suspicion 
of intrigue on the part of such officer, who in case of the 
President’s conviction would become President. The result 
could in no wise affect the Chief Justice, as he holds his 
position for life, and is not in line of succession to the 
Presidency. 

There cannot be a conviction in an impeachment trial 
unless two-thirds of the members present vote for convic¬ 
tion. This needs some explanation, for standing alone, 
it is apt to create an erroneous impression, growing out of 
the words “of the members present”. 

In Article I, Section 5, Clause 1, the Constitution says: 
“A majority of each House shall constitute a quorum to 
do business.” The words in the clause under considera¬ 
tion “the members present” are equivalent to a quorum 
being present, and mean that two-thirds of a quorum must 
concur in a conviction. 

In the impeachment trial of Judge Swayne it was held 
that a quorum of the Senators must be present, or the trial 
could not proceed. It would be strange if a mere majority 
of the members who might be present could convict an 
officer who had been impeached. Evidently the clause in 
question must be considered in connection with the one 
quoted from Article I. 

Effect of Impeachment. The Constitution limits the 



CONSTITUTION OF THE UNITED STATES 


11 


judgment, or punishment, which follows a conviction on 
impeachment to: “Removal from office, and disqualifica¬ 
tion to hold and enjoy any office of honor, trust, or profit, 
under the United States.” 

There was practically no opposition to this provision 
in the Constitutional Convention. The convicted officer, 
it will be observed, cannot be fined nor imprisoned, and 
the punishment is largely political in character. As a 
result of his conviction he is removed from office and 
during his life, disqualified from holding any office of 
honor, trust, or profit in the government of the United 
States. This is a very severe penalty. It is not limited 
to deprivation of holding an office of profit, which would 
bring a compensation, but it applies to all offices which are 
honorable under the Federal Government. It also applies to 
any position of trust and disqualifies the convicted officer 
from ever holding such trust. In addition to this severe 
penalty, it is expressly provided in the Constitution that 
the “ party convicted shall nevertheless be liable and sub¬ 
ject to indictment, trial, judgment, and punishment, accord¬ 
ing to law.” That is to say, whenever an officer of the 
United States is convicted on impeachment proceedings, 
he may also be tried by the courts and if convicted in 
those tribunals may be punished according to law. 

Acquittal of Impeached Officers. The deprivation of 
holding a public office, or enjoying an office of honor or 
trust applies only to a Federal office, and would not extend 
to such an office within a State, county, or city. An inter¬ 
esting question arose under this clause, though it is not 
mentioned in the Constitution. What would be the 
effect of an acquittal of an impeached officer on the 
right of the courts to try him? Would an acquittal bar 
them of the right to proceed against him? On this ques¬ 
tion very eminent Constitutional writers have disagreed. 
Judge Story thought the acquittal would prevent the courts 
having jurisdiction in such a case, but Mr. Tucker thought 
otherwise. On principle, this would seem to be the sounder 
rule. The impeachment proceedings are against the officer , 



12 


CONSTITUTION 


OF THE UNITED STATES 


while the proceedings in the courts are against the indi¬ 
vidual who violates the statute. It is difficult to see why 
the court should not proceed to try the man for a viola¬ 
tion of the laws, because the Senate acquitted him of com¬ 
mitting the offense as an officer. The impeachment would 
be a bar to a subsequent impeachment for the same offense, 
but why should it be a bar to the courts trying him for 
violating the criminal statutes ? 

JOINT POWERS 

§ 12. Election of Senators and Representatives. The 

Constitution refers the times, places, and manner of elect¬ 
ing Senators and Representatives to the State Legislatures 
though it reserves to Congress the power to make or alter 
such regulations. This clause created great opposition 
in some of the States when they were considering the Con¬ 
stitution. In Virginia, Patrick Henry vigorously opposed 
it, and so did James Monroe, afterwards President of the 
United States. 

§ 13. Meetings of Congress. Congress is required by the 
Constitution to meet at least once in each year, and it 
fixes the first Monday in December as the time, but Con¬ 
gress may agree upon some other day if it chooses to do 
so. There was an effort made in the Convention to substi¬ 
tute May for December, so that the annual meetings would 
occur in that month but it failed. 

The Supreme Court of the United States has decided 
that the government of the United States began on March 
4, 1789. Mr. Webster in a speech delivered in the Sen¬ 
ate in 1835, said: 


“ There is no clause of the Constitution, nor is there any 
law which declares that the term of office of members of the 
House of Representatives shall expire at twelve o’clock at 
night on the third of March. They are to hold for two 
years, but the precise hour for the commencement of that 
term of two years is nowhere fixed by constitutional or legal 
provision. It has been established by usage and by infer¬ 
ence, and very properly established that, since the first 
Congress commenced its existence on the first Wednesday 


CONSTITUTION OF THE UNITED STATES 


13 


in March, 1789, which happened to be the fourth day of the 
month, therefore, the fourth of March is the day of the 
commencement of each successive term. ’ ’ 2 

Under the Articles of Confederation Congress was in 
session almost continuously, and it was doubtless the pur¬ 
pose of the framers of the Constitution to avoid this condi¬ 
tion, which caused them to insert this provision. 

On this subject of Annual Sessions of Congress, Wash¬ 
ington wrote: 

“The incertitude which prevails in Congress, and the non- 
attendance of its members, are discouraging to those, who 
are willing and ready to discharge the trust, which is 
reposed in them; whilst it is disgraceful in a high degree 
to our country. But it is my belief, that the case will never 
be otherwise, so long as that body persist in their present 
mode of doing business, and will hold constant instead of 
annual sessions; against the former of which my mind 
furnishes me with a variety of arguments; but not one in 
times of peace in favor of them. 

“Annual sessions would always produce a full repre¬ 
sentation, and alertness in business. The delegates after 
a separation of eight or ten months, would meet each other 
with glad countenances. They would be complaisant; they 
would yield to each other all that duty to their constituents 
would allow, and they would have better opportunities of 
becoming acquainted with their (constituents’) sentiments, 
and removing improper prejudices, when they are imbibed, 
by mixing with them during the recess. Men, who are 
always together, get tired of each others company. They 
throw off that restraint, which is necessary to keep things 
in proper tune, they say and do things, which are person¬ 
ally disgusting; this begets opposition; opposition begets 
faction, and so it goes on till business is impeded, often at 
a stand. I am sure (having the business prepared by 
proper boards, or a committee) an annual session of two 
months would despatch more business than is now done in 
twelve, and this by a full representation of the Union.” 3 

§ 14. Each House Judge of Its Members. Election. 
Each house or branch of Congress is the judge: first, of 
the election; second, of the returns; third, of the qualifi- 

2 Webster’s Works, vol. 4, p. 217. 

3 Sparks, Writings of Washington, vol. 9, pp. 33, 34. 


14 


CONSTITUTION OF THE UNITED STATES 


cations of its members. There seems to be much propriety 
in these provisions, though some writers on the Constitu¬ 
tion have thought the power to pass on the election of the 
members should have been given to the judiciary. Coupled 
with this provision is one requiring a majority of each 
House necessary to constitute a quorum, in order to trans¬ 
act business, but a smaller number than a majority may 
adjourn the meetings of Congress and compel absent mem¬ 
bers to attend the sessions, and may also prescribe penalties 
for their non-attendance. 

Attendance. In the Congress under the Articles of Con¬ 
federation, members were negligent in their attendance on 
the meetings of that body, and this clause had its origin 
in an attempt to prevent a repetition of such practice. In 
the Constitutional Convention, Charles Pinckney, one of 
the most influential of the members of the Convention, in 
speaking on this question, said: 

4 ‘Some effectual mode must be adopted to compel an 
attendance, as the proceedings of the government must 
depend on its formation. The inconvenience arising from 
the want of a sufficient representation has been frequently 
and severely felt in Congress. The most important ques¬ 
tions have, on this account, been delayed, and I believe I 
may venture to assert, that for six months in the year they 
have not lately had such a representation as will enable 
them to proceed on business of consequence.” 

Rules and Punishment. The authority of each house of 
Congress also extends to determining the rules which shall 
govern it, and to the punishment and expulsion of its mem¬ 
bers; but to expel a member requires the concurrence of 
two-tliirds of a quorum of that body. The power to 
punish extends to imprisonment in the discretion of the 
house, and either branch may punish members for con¬ 
tempt. The power to expel being vested in each branch, 
the question arises for what conduct may this punishment 
be inflicted upon a member? The answer is, that each house 
can expel a member for any conduct which in its judgment 
merits such punishment. Thus the whole subject is left to 


CONSTITUTION OF THE UNITED STATES 


15 


the judgment of the members of each house. The Constitu¬ 
tion does not limit the power of either house in the matter, 
nor does it pretend to specify the causes for which expulsion 
may be exercised. The subject was forcibly presented to 
the Senate in a speech by Senator Knox in which he said: 

‘‘The Constitution enables the Senate to protect itself 
against improper characters by expelling them by a two- 
thirds vote if they are guilty of crime, offense of immorality, 
disloyalty, or gross impropriety during their service. I 
specify these reasons, because I cannot imagine the Senate 
expelling a member for a cause not falling within one of 
them. ’ ’ 4 

§15. Journals of Each House—Yeas and Nays. Each 
house of Congress must keep a journal in which shall be 
recorded its proceedings, which are to be published unless 
the house may think some of the proceedings should be 
kept secret. It requires one-fifth of the members present 
in either house to call for a yea and nay vote, to be entered 
on the journal. In the Constitutional Convention, Gou- 
verneur Morris moved that one member might call for the 
yeas and nays, and this was the rule under the Articles of 
Confederation. Strenuous opposition existed in the Con¬ 
vention to the calling for the yeas and nays. Mr. Sherman 
said: 

“They had never done any good, and have done much 
mischief. They were not proper, as the reasons governing 
the voter never appear along with them. ’ J 5 

Speaking of this clause Mr. Justice Miller has said: 

“Whether wise or unwise, it is the fruitful source of a 
great waste of time. It may be very well doubted whether 
the call of the yeas and nays in the House of Representa¬ 
tives, which necessarily consumes a great deal of time, is 
not resorted to more for that purpose than any other, 
thereby frequently defeating a measure which a majority 
of the House is prepared to pass. It may be of some 
advantage in the way of compelling members to spread their 
names upon the record as having voted for or against, any 

4 Cong. Rec. 49, Cong. 2 Sess., vol. 41, pp. 3005, 3006. 

5 Madison’s Journal of Convention, 501. 


16 


CONSTITUTION OF THE UNITED STATES 


particular proposition, and thereby holding them responsi¬ 
ble to the public sentiment of their constituents. Where 
this is the conscientious object and motive in calling for the 
yeas and nays it is probably unobjectionable, and in the 
enactment of laws of great public importance it is desirable, 
for many reasons, that the votes of the members should be 
recorded. No doubt this was the object of the Constitution 
in authorizing a call of the yeas and nays upon the request 
of one-fifth of the members present, and this requirement 
of one-fifth seems to be a necessity to prevent the frittering 
away of the time of the legislative body at the request of a 
single member. ’ ’ 6 

The journal of each branch of Congress is such a public 
record as the courts will take judicial notice of, and the 
proceedings of Congress as recorded in the journals are 
presumed to be correct. 

§ 16. Adjournment of Congress during Session. Each 
House of Congress is forbidden by the Constitution to 
adjourn during the session for a longer period than three 
days, unless the other House consents, or to a different 
place than where Congress is sitting. The Constitution of 
New Hampshire, adopted in 1776, provided that neither 
branch of the legislature should adjourn longer than from 
Saturday till Wednesday without the other’s consent. 
This was probably suggestive of this clause in the Federal 
Constitution. 

§ 17. Compensation. The compensation which Senators 
and Representatives shall receive is left to Congress and is 
not controlled by the Constitution. It is to be paid out of 
the National Treasury. Congress has from time to time 
increased the compensation of its members until now they 
receive $7,500 per annum. Under the Articles of Con¬ 
federation each State paid its members of Congress. At the 
time the original amendments were submitted there was 
one which provided: 

“No law varying the compensation for the services of 
Senators and Representatives shall take effect until an 
election of Representatives shall have intervened.” 

<5 Miller, The Constitution, 19". 



CONSTITUTION OF THE UNITED STATES 


17 


It was suggested by several of the States, and passed 
Congress, but was defeated for ratification by only one vote 
in one of the States though for some time it was thought 
to have been ratified by a sufficient number of States. The 
Vice President and the Speaker of the House receive each 
$12,000 per annum. 

§ 18. Privileges. Except in case of treason, felony, and 
breach of the peace, Senators and Representatives are not 
subject to arrest while attending the sessions of their 
respective houses, or while going to or returning from the 
same. This provision is of very ancient origin and goes 
back to the days of Edward the Confessor in 1042, when it 
included the servants and property of the members of 
Parliament. But the earliest mention of it among American 
State Constitutions is found in the Constitution of 
Massachusetts in 1780. The privilege is personal, and in 
the United States applies only to Senators and Representa¬ 
tives, but it attaches to them before they are sworn and 
while en route to take their seats as members of Congress. 
Whether the privilege extends to the service of a summons 
in a civil suit, is a question concerning which there is a 
diversity of opinion among the authorities. Ambassadors, 
Ministers, and Consuls are protected from arrest by this 
provision. But the privilege must be pleaded, for the 
courts will not take judicial notice of it. 

A very important provision relating to the privileges of 
the members is the one which pertains to the freedom of 
speech in debate. The provision of the Constitution on this 
subject is “For any speech or debate in either house, they 
shall not be questioned in any other place.” This privilege 
is among the oldest that has been conferred by any Consti¬ 
tutional Government, and in English Constitutional law it is 
traceable to the fourteenth century. The whole clause was 
adopted in the Constitutional Convention without debate or 
opposition. 

The words “speech or debate” were held by the Supreme 
Court in Kilbourne v. Thompson, 7 to include reports made 


7 103 U. S. 168. 




18 


CONSTITUTION OF THE UNITED STATES 


to either house by a committee; there is some difference of 
opinion among authors whether the privilege would pro¬ 
tect a member in case he maliciously and corruptly 
slandered another member. 

§19. Appointment to Civil Office. The Constitution 

prohibits the appointment of a Senator or Representative 
to any civil office under the United States, which was 
created, or the emoluments of which were increased, during 
his term. This clause was the occasion of a very extended 
debate in the Constitutional Convention. It was considered 
by many of the ablest members of that body that the adop¬ 
tion of such a provision would be derogatory to individual 
merit, and a strong insinuation against the character of 
those who should become Senators and Representatives. 
A motion to limit the application of the clause to members 
of the House alone, at one time passed the Convention, but 
later the clause was changed to its present reading. 

The office which a Senator or Representative is prohibited 
from holding, under this provision, is a civil office under 
the United States, which has been created or established 
during the term of the Senator or Representative, or the 
emoluments of which have been increased during their 
term. The restriction, however, expires with the close 
of the member’s term. A learned commentator on the 
Constitution has said of this clause: 

4 4 There would seem no reason, other than general policy, 
for excluding some of the executive officers, below the Presi¬ 
dent, from seats in either House, or to prevent an individual 
from holding at the same time the office of Secretary of 
State, and of the Treasury, or any similar offices. So, 
although no reasons merely of a legal nature, might be 
opposed to it, the impolicy of admitting such officers to 
compose a part of the legislature is exceedingly plain.” 8 

It has been decided by the Supreme Court of the United 
States that Congress can make it a crime, for a Senator 
after his election and during his term, to agree to receive, or 
to receive, any compensation for services rendered, or 

8 Rawle, The Constitution, 184. 


CONSTITUTION OF THE UNITED STATES 


19 


which may be rendered, in any department of the govern¬ 
ment, in any matter in which the United States is a party. 9 

§ 20. Revenue Bills. Rouse Originates; Senate Amends. 
The term revenue in this clause means the money necessary 
to meet the expenses of the government. In England for 
centuries it had been the custom for such bills to originate 
in the House of Commons, and from the earliest beginning 
of American Constitutional law the same principle had 
. been recognized. In some of the colonial legislatures it was 
contended that such power should be exercised by the lower 
house, to the exclusion of the Senate to amend, and some 
of the State Constitutions contained such a provision. In 
the Convention which framed the Constitution several 
members thought that such bills should originate in either 
branch of Congress. Mr. Madison and Mr. Wilson were of 
this opinion, and at one time the provision to limit the 
origin of such bills to the House was defeated in the Con¬ 
vention. The clause as it appears in the Constitution was 
a compromise. It is difficult to understand just why the 
Senate should be deprived of the power to originate revenue 
bills, and yet have the power conferred upon it to amend 
them. The amendment was eminently wise and proper, 
for not to have given the Senate the power of amendment 
would have conferred too much authority upon the House 
of Representatives. This power of amendment practically 
confers on the Senate the power to originate, for the Senate 
may amend a bill by striking out all after the enacting 
clause and inserting entirely new provisions, as was done 
with the “Mills Tariff Bill” in 1888. 

Mr. Justice Miller in discussing this clause said: 

“The revenues of the country are derived from a system 
of permanent taxation, which year after year brings into 
the treasury of the United States, by its continued opera¬ 
tion, sufficient means to pay all the expenses of the Govern¬ 
ment, as well as the interest on its public debt, and it is not 
necessary that every year, or even at every term of Con¬ 
gress, there should be a new law for the raising of revenue, 
but it is required there should be a law every year appro- 

9 Burton v. U, S., 202 U. S. 344, 365. 


20 


CONSTITUTION OF THE UNITED STATES 


printing the money thus placed in the treasury to the needs 
of the Government. 

“The House of Kepresentatives claims the authority of 
initiating all bills for revenue and also the general appro¬ 
priation bills, and while the Senate does not admit the cor¬ 
rectness of this claim, it will hardly be questioned at this 
time because it has so long acted upon this practice. The 
Senate, however, originates bills for specific appropriations. 
The laws prescribing the manner of raising money, and the 
act of appropriating it are quite clifferent.” 10 

§ 21. Approval of Bills by President. Every bill or 
joint resolution which is passed by Congress must be pre¬ 
sented to the President for his approval. If he approves 
of the bill he signs it. This is the only obligation the Con¬ 
stitution requires of the President concerning a bill; 
when it is signed it becomes a law. It is customary for 
the President to write “Approved” on the bill and to date 
it, but he is not required to do so by any provision of the 
Constitution. If the President does not approve of the bill, 
he returns it to that branch of Congress in which it origi¬ 
nated, and he must state his objections to ft. This is an 
important part of the President’s duty and cannot be dis¬ 
regarded, for the members of Congress should be advised 
of the President’s reasons for his veto. It is for their 
benefit that the provision was inserted. Perhaps he can 
enlighten them upon the subject so that another vote would 
result differently. 

The President is allowed ten days—not counting Sunday 
—in which to consider the bill after its presentation to him. 
If he does not return it within this time, it becomes a law 
as fully as if he had signed it. In this way President Cleve¬ 
land permitted the Wilson Tariff Act of 1894 to become a 
law. Concerning the time which the President has to con¬ 
sider the bill, Mr. Madison wrote: 

“It is obvious that the Constitution meant to allow the 
President an adequate time to consider the bills presented 
to him and to make his objections to them; and, on the 

Miller, The Constitution, 204, 205. 


CONSTITUTION OF THE UNITED STATES 


21 


other hand, that Congress should have time to consider 
and overrule the objections. A disregard on either side 
of what it owes to the other, must be an abuse for which 
it would be responsible under the forms of the Constitu¬ 
tion. An abuse on the part of the President, with a view 
sufficiently manifest, in a case of sufficient magnitude to 
deprive Congress of the opportunity of overruling objec¬ 
tions to their bills, might doubtless be a ground for im¬ 
peachment. But nothing short of the signature of the 
President, or a lapse of ten days without a return of his 
objections, or an overruling of the objections by two-thirds 
of each House of Congress can give legal validity to a 
bill.” 11 

Return of Bill. The bill must be returned by the Presi¬ 
dent to the House where it originated, not to the presiding 
officer or clerk of that body. 

Two-tliirds of each branch of Congress may pass a bill 
notwithstanding the President’s veto, but this can only be 
done by a yea and nay vote, and the names of those mem¬ 
bers voting for or against the bill, must be recorded on the 
journal of each House. 

§ 22. Veto Clause. The principle of conferring upon the 
sovereign the power to veto an act of legislation is of very 
ancient origin, going back to the Roman Tribunes. It was 
incorporated into the Constitutional Government of Eng¬ 
land in a very early day as a prerogative of the crown, 
though in time the power was not exercised by the English 
sovereigns and has not been resorted to by any English 
king or queen since the time of Anne in 1714. 

The colonial governors could exercise the power, but 
only two State Constitutions conferred it upon the gov¬ 
ernors at the adoption of the Constitution. There was a 
general feeling among the members of the Constitutional 
Convention that the power should exist, but upon whom 
it should be conferred was a difficult question for the Con¬ 
vention to decide, as there existed a wide difference of 
opinion upon the question among the members. Some of 
them wanted to confer the power upon the President and 

ii Madison’s Writings, vol. 4, pp. 299, 300. 


22 


CONSTITUTION OF THE UNITED STATES 


Supreme Court, but the clause as it reads was finally 
adopted. 

In looking for the purpose of the veto clause, or the object 
the Convention sought to accomplish by inserting it in the 
Constitution, it is well to consult the opinions of some of 
the great men who assisted in framing the Constitution and 
who have been potent as statesmen. Mr. Madison said: 

u As a shield to the Executive department against legis¬ 
lative encroachments, and a general barrier to the Consti¬ 
tution against them, the veto power was doubtless expected 
to be a valuable provision. But a primary object of the 
prerogative most assuredly, was that of a check to the 
instability in legislation, which had been found the beset¬ 
ting infirmity of popular governments, and been suffi¬ 
ciently exemplified among ourselves in the legislature of the 
States.” 12 

Mr. Hamilton, in discussing the nature of the veto power, 
remarked: 

“The primary inducement to conferring the power in 
question upon the Executive is to enable him to defend 
himself. The secondary is to increase the chances in favor 
of the community against the passing of bad laws through 
haste, inadvertence, or design. ” 13 

Mr. Jefferson wrote: 

“It is chiefly for cases when the legislature is clearly 
misled by error, ambition, or interest, that the Constitution 
has placed a check on the negative of the President.’’ 

“The negative of the President is the shield provided by 
the Constitution to protect against the invasion by the 
legislature, (1) the rights of the Executive, (2) of the 
Judiciary, (3) of the States and State Legislatures.” 14 

Mr. Calhoun said: 

“One of the leading motives for vesting the President 
with this high power, was undoubtedly to give him the 
means of protecting the portion of the powers allotted to 
him by the Constitution, against the encroachment of Con- 

12 Madison’s Writings, vol. 4, p. 369. 

13 The Federalist, No. 73. 

14Ford’s Jefferson, vol. 5, pp. 287, 289. 


CONSTITUTION OF THE UNITED STATES 


23 


gress. To make a division of power effectual, a veto in 
one form or another is indispensable.’’ 15 

Mr. Webster said that the veto is 

“an extraordinary power, to be exercised only in peculiar 
and marked cases. It was vested in the President, doubtless, 
as a guard against hasty or inconsiderate legislation, and 
against any act, inadvertently passed, which might seem 
to encroach on the just authority of other branches of the 
government.” 16 

Reasons for Veto. The reasons for which the President 
may veto a bill must vest exclusively with him. But there 
has apparently been a great difference of opinion on the 
subject among the Presidents. In the early history of the 
Republic the power was exercised but seldom, and then 
upon what was considered Constitutional grounds. Judge 
Story said: “In the first forty years of the government no 
bill was passed over the veto of the President.” Jefferson 
said on this subject: 

“Unless the President’s mind on a view of everything 
which is urged for and against a bill, is tolerably clear that 
it is unauthorized by the Constitution, if the pro and con 
hang so even as to balance his judgment, a just respect for 
the wisdom of the legislature would naturally decide a bal¬ 
ance in favor of their opinion. It is chiefly for cases where 
they are clearly misled by error, ambition, or interest that 
the Constitution has placed a check in the negative of the 
President.” 17 

In more recent years the Presidents seem to exercise the 
power for any reason which to them appears sufficient, 
regardless of whether the bill contained Constitutional #, 
defects or not. 

During the term of President Cleveland, the majority of 
whose vetoes were of pension bills, an instructive debate 
on this subject occurred in the Senate upon the occasion of 
a veto in which the opposing views were stated. Senator 
Stewart said, on the one side: 

is Calhoun’s Works, vol. 4, p. 85. 17 Ford’s Jefferson, vol. 5, p. 289. 

i6 Webster’s Works, vol. 1, p. 267. 


24 


CONSTITUTION OF THE UNITED STATES 


“It is clear as anything from the debates when the Con¬ 
stitution was formed, that the veto power was only to be 
exercised to veto unconstitutional legislation.. The power 
for that reason was incorporated in the Constitution. ’ 9 

To this Senator Morgan replied, on the other side: 

“The President of the United States finds no limit in 
the exercise of his discretion upon the veto power; he has 
the same discretion in exercising that power that Senators 
have in voting for or against a bill.” 

On the subject of the veto power, Mr. Webster once said: 

“If we were now re-framing the Constitution we might 
wish for some, I do not say what, guards and restraints 
upon this power more than the Constitution at present 
contains.” 

And Mr. Justice Miller used this language: 

“There is a just medium on this subject, and it is prob¬ 
able that a sound view would be that the occasion which 
requires or justifies the President in returning without his 
approval a bill passed by both Houses of Congress, with 
his objections thereto, should be of grave and serious char¬ 
acter, and the measure itself one of much public impor¬ 
tance.” 

Probably the consideration of this question by Mr. 
Walker in his American Law is as good as can be found. 
That author says: 

“Although the Constitution does not indicate the proper 
occasion for its exercise, yet as one man thereby sets his 
individual opinion against a majority of both Houses of 
Congress, it was manifestly intended only for cases of 
emergency. The better opinion is that it can be properly 
exercised on two occasions; first, when the bill, either from 
oversight in framing it or from some contingency not known 
at the time of its passage through Congress, has become 
manifestly improper to be made a law, at the time of its 
presentation to the President, or, secondly, when such an 
exercise of power is necessary to shield the executive 
department against encroachment by the legislature. Being 
anti-republican in its character, it ought not to be exer¬ 
cised upon questions of mere policy, about which fair minds 


25 


CONSTITUTION OF THE 


UNITED STATES 


may differ; for this, as has been well remarked, would be 
converting the extreme medicine of the Constitution into 
its daily bread.” 

Veto Can Not Be Recalled. A veto once made can not be 
recalled, neither can the President veto a portion of a bill. 
President Grant recommended an amendment to the Con¬ 
stitution authorizing the President to veto a part of a bill, 
but Congress disregarded the suggestion. Attempts have 
been made to deprive the President of the veto power, and 
an amendment to the Constitution was proposed that it 
should require only a majority of all the members elected 
to both houses of Congress, to pass a bill over the Presi¬ 
dent’s veto, but this was also rejected. 

Washington vetoed 2 bills, Madison 6, Monroe 1, Jackson 
12, Tyler 9, Polk 3, Pierce 3, Buchanan 7, Lincoln 3, John¬ 
son 21, Grant 43, Hayes 12, Arthur 4, Cleveland 351, Harri¬ 
son, Benjamin, 17, McKinley 5, Roosevelt 40. The power 
was not exercised by Adams, Jefferson, John Q. Adams, 
Van Buren, William H. Harrison, Taylor, Fillmore, or 
Garfield. 


CHAPTER II 


EXPRESS POWERS OF CONGRESS 

§23. What Are Express Powers? We now come to the 
consideration of the express powers of Congress, by which 
is meant those powers which the Constitution expressly 
authorizes Congress to exercise. These relate to nineteen 
separate subjects concerning which Congress has full 
authority to legislate. 

The word ‘ ‘ power ’ ’ in this clause is said by an able com¬ 
mentator on the Constitution to mean “authority to 
enact”. Certainly no more comprehensive term could have 
been used. It confers upon Congres ^ull authority to legis¬ 
late concerning those things wnicii are mentioned in the 
section. 

In discussing the term “power” as it is here employed 
Hamilton in the Federalist said: 

“What is a power, but the ability or faculty of doing a 
thing? What is the ability to do a thing but the power 
of employing the means necessary to its execution? What 
is a legislative power, but a power of making laws? What 
are the means to execute a legislative power, but laws?” 1 

§ 24. Power to Lay Taxes. To lay and collect taxes is 
the first of the enumerated powers. Two of the plans for 
a Constitution contained provisions on the subject of taxes. 
Mr. Pinckney’s plan provided: 

“The legislature of the United States shall have power 
to lay and collect taxes, duties, imposts, and excises.” 2 

The other was a resolution of Mr. Paterson which read: 

“That in addition to the powers vested in the United 
States in Congress, by the present existing Articles of Con¬ 
federation, they may be authorized to pass Acts for raising 
a revenue, by levying a duty or duties on all goods or mer- 

i Ford’s Federalist, 202. 2Madison’s Journal, 67. 


26 





27 


CONSTITUTION OF THE UNITED STATES 


chandise of foreign growth or manufacture, imported into 
any part of the United States; by stamps on paper, vellum, 
or parchment; and by a postage on all letters, or packages, 
passing through the general postoffice; to be applied to such 
Federal purposes as they shall deem proper and expedient; 
to make rules, and regulations for the collection thereof; 
and the same from time to time to alter, and amend in such 
manner as they shall think proper.” 3 

The respective terms, 44 taxes, duties, imports, and 
excises” deserve special consideration. It has been said 
that they were 44 originally of almost the same meaning.” 
Judge Story said: 

“In a general sense, all contributions imposed by the 
government upon individuals for the service of the State 
are called taxes, by whatever name they may be known, 
whether by the name of tribute, tithe, talliage, impost, duty, 
gabel, custom, subsidy, aid, supply, excise, or other name. 
The word 4 duties ’ has not perhaps, in all cases, a very 
exact signification, or rather it is used sometimes in a larger 
and sometimes in a narrower sense. In its large sense, 
it is very nearly an equivalent to taxes, embracing all im¬ 
positions or charges levied on persons or things. In its 
more restrained sense, it is often used as equivalent to 
4 customs ’, which appellation is usually applied to those 
taxes which are payable upon goods and merchandise ion 
ported or exported, and was probably given on account of 
the usual and constant demand of them for the use of kings, 
States, and governments. In this sense, it is nearly synony¬ 
mous with 4 imposts ’, which is sometimes used in the large 
sense of taxes, or duties, or impositions, and sometimes in 
the more restrained sense of a duty on imported goods 
and merchandise. Perhaps it is not unreasonable to pre¬ 
sume that this narrower sense might have been in the 
minds of the framers of the Constitution when this clause 
was adopted. 4 Excises’ are generally deemed to be of an 
opposite nature to 4 imposts’, in the restrictive sense of 
the latter term, and are defined to be an 4 inland imposi¬ 
tion’, paid sometimes upon the consumption of the com¬ 
modity, or frequently upon the retail sale, which is the 
last stage before the consumption.” 4 

3 Madison’s Journal, 164. 

4 Story, The Constitution, vol. 1, (5th ed.) § § 950, 952, 953. 


28 


CONSTITUTION OF THE UNITED STATES 


In regard to the terms ‘taxes/ etc., Mr. Tucker says: 

“ Wliat is the meaning of the terms, taxes, duties, imports, 
and excises’? We are left to seek the meaning of them as 
best we may by reference to other clauses of the. Consti¬ 
tution, and the meaning attached to them by writers on 
political economy. ‘ Taxes’ is a broad word, which, in its 
general signification, may mean all methods by which a 
government, under its power of eminent domain, can com¬ 
pel a contribution to its public revenue by the citizens of 
a country out of their private means. 5 ‘Duties’ mean what 
is due to and might, therefore, be co-extensive with the 
word ‘taxes’, but the Constitution seems to confine it to 
impositions on imports and exports. ‘Imposts’ originated 
from the Latin imponere which means to put upon, and 
is a broad term which might include all burdens imposed 
upon the citizen for the purpose of governmental rev¬ 
enue. ‘Excises’ is from the Latin excidere, which means 
to cut off from, and means ‘the withholding by the Govern¬ 
ment from the producer of a part of his product, as a 
license tax on his business, such as the ‘whisky tax’.” 

Judge Cooley in his consideration of these terms said: 

“The word ‘taxes’ in its most enlarged sense, embraces 
all the regular impositions made by government upon the 
person, property, privileges, occupations, and enjoyments 
of the people for the purpose of raising public revenue. As 
duties, imposts, and excises, are laid or imposed for this 
purpose, they are in a strict sense taxes, and no doubt 
might have been levied by the government under that des¬ 
ignation without being here specifically mentioned. But as 
the term ‘taxes’ is sometimes used in contradistinction to 
these levies, it conduced to certainty to name them sepa¬ 
rately. It was also a convenience in view of the special 
rule which was prescribed for their levy. The terms ‘du¬ 
ties’ and ‘imposts’ are nearly synonymous, and are usually 
applied to the levies made by government on the importa¬ 
tion or exportation of commodities, while the term ‘ex¬ 
cises’ is applied to the taxes laid upon the manufacture, 
sale, or consumption, of commodities within the country, 
and upon the license to pursue certain occupations. 

“Taxes are distinguished from arbitrary levies in that 
they are laid according to some rule which apportions the 
burden between the subjects thereof. An exaction which 

e Tucker, The Constitution, vol. 1, pp. 457-459. 


CONSTITUTION OF THE UNITED STATES 


29 


is made without regard to any rule of apportionment is, 
therefore, not a tax, and is not within the Constitutional 
authority of the government. ’’ 6 

Debts of the United States. The first purpose for which 
taxes and duties are laid is to “Pay the debts of the United 
States.’’ In considering the term “debts” the Supreme 
Court in United States v. Realty Company, 7 said: 

“It is conceded, and indeed it cannot be questioned that 
the debts (of the United States) are not limited to those 
which are evidenced by some written obligation, or those 
which are otherwise of a strictly legal character. The term 
‘debts’ includes those debts or claims which rest upon a 
merely equitable or honorary obligation, and which would 
not be recoverable in a court of law if existing against 
an individual. The Nation, speaking broadly, owes a ‘debt’ 
to an individual when his claim grows out of general prin¬ 
ciples of right and justice; when, in other words, it is based 
upon considerations of a moral or merely honorary nature, 
such as are binding on the conscience or the honor of an 
individual, although the debt could obtain no recognition 
in a court of law. The power of Congress extends at least 
as far as the recognition and payment of claims against 
the Government which are thus founded. To no other 
branch of the Government than Congress, could any applica¬ 
tion be successfully made on the part of the owners of 
such claims or debts for the payment thereof. Their rec¬ 
ognition depends solely upon Congress, and whether it will 
recognize claims thus founded must be left to the discre¬ 
tion of that body. Payments to individuals, not of right 
or of a merely legal claim, but payments in the nature of a 
gratuity, yet having some feature of moral obligation to 
support them, have been made by the government by virtue 
of Acts of Congress, appropriating the public money, 
ever since its foundation. Some of the Acts were based 
upon considerations of pure charity.” 

Uniformity of Taxes. The Constitutional requirement 
that all duties, imposts, and excises, shall be uniform 
throughout the United States is a wise and very important 
provision, and was so necessary in the judgment of the 

6 Cooley’s Constitutional Laws, (2 ed.) 54. 

7 163 U. S. 440. 



30 


CONSTITUTION OF THE UNITED STATES 


Convention that it met with no practical opposition. Judge 
Story said of it: 

This provision was adopted to 4 ‘cut off all undue prefer¬ 
ences of one State over another in the regulation of subjects 
affecting their common interests. Unless duties, imposts, 
and excises were uniform, the grossest and most oppressive 
inequalities, vitally affecting the pursuits and employments 
of the people of different States, might exist. The agri¬ 
culture, commerce, or manufactures of one State might be 
built up on the ruins of those of another; and a combina¬ 
tion of a few States in Congress might secure a monopoly 
of certain branches of trade and business to themselves, 
to the injury, if not the destruction, of their less favored 
neighbors. ... If this provision, as to the uniformity 
of duties had been omitted, although the power might never 
have been abused to the injury of the feebler States of 
the Union, yet it would, of itself, have been sufficient to 
demolish, in a practical sense, the value of most of the 
other restrictive clauses in the Constitution. New York 
and Pennsylvania might, by an easy combination with the 
Southern States, have destroyed the whole navigation of 
New England. A combination of a different character, 
between the New England and the Western States, might 
have borne down the agriculture of the South; and a com¬ 
bination of a yet different character might have struck at 
the vital interests of manufacturers. So that the general 
propriety of this clause is established by its intrinsic polit¬ 
ical wisdom, as well as by its tendency to quiet alarms 
and suppress discontent.’’ 8 

Mr. Justice Miller, in considering this clause, said: 

Taxes, imposts, and excises, “are not required to be 
uniform as between the different articles that are taxed; 
but uniform as between the different places and States. 
Whisky, for instance, shall not be taxed any higher in the 
State of Illinois or Kentucky, where so much of that article 
is produced, than it is in Pennsylvania. The tax must 
be uniform on the particular article; and it is uniform 
within the meaning of Hie Constitutional requirement if it 
is made to bear the same percentage over all the United 
States. That is manifestly the meaning of this word as 
used in this clause. The framers of the Constitution could 

8 Story, The Constitution, vol. 1, (5th eel.) § 957. 


31 


CONSTITUTION OF THE UNITED STATES 


not have meant to say that the Government, in raising its 
revenues, should not be allowed to discriminate between 
the articles which it should tax. This conclusion has come 
to be accepted as the well-settled construction of this clause 
in regard to uniformity, and it bothers the State authorities 
now more than the Federal officers.” 9 

The uniformity applies to duties, imposts, and excises, 
and not to the taxes authorized by this clause. The expres¬ 
sion refers to geographical uniformity, and has been held 
to be equal to the expression 4 Go operate generally through¬ 
out the United States.” 

§25. To Borrow Money on the Credit of the United 
States. This clause, short and precise as it is, was the 
cause of an interesting debate in the Constitutional Conven¬ 
tion. The Articles of Confederation authorized Congress 
4 4 to borrow money or emit bills on the credit of the United 
States.” One of the plans for a Constitution which was 
before the Convention contained a provision that Congress 
could 44 borrow money and emit bills of credit.” But the 
Convention limited the clause to the language found in 
the Constitution. The evident intention of the Convention 
was to prevent the issuance of paper money by the Govern¬ 
ment. Under this clause the power to borrow money is 
placed in Congress, and is the second of the enumerated 
powers conferred by the Constitution upon Congress. Chief 
Justice Chase, in The Banks v. Mayor, said: 

4 4 The authority of the United States to borrow money 
on the credit of the United States is, in the enumeration 
of the powers expressly granted by the Constitution, sec¬ 
ond in place, and only second in importance to the author¬ 
ity to lay and collect taxes. Both are given as means to 
the exercise of the functions of Government under the 
Constitution ; and both, if neither had been expressly con¬ 
ferred, would be necessarily implied from other powers. 
For no one will assert that without them the great powers 
to raise and support armies, to provide and maintain a 
navy, and to carry on war, could be exercised at all; or, 
if at all, with adequate efficiency.” 10 

9 Miller, The Constitution, 240, 242. 

i<> 7 Wall. 23. 



32 


CONSTITUTION OF THE UNITED STATES 


The method of borrowing money which is usually 
resorted to by the Government is to issue bonds and to sell 
them. Such bonds are non-taxable, otherwise, they might 
be taxed so excessively as to greatly impair their value in 
the markets. 

§26. To Regulate Commerce. The third and perhaps 
the greatest power which the Constitution confers upon 
Congress is the power: 

4 ‘To regulate Commerce with foreign Nations, and among 
the several States, and with the Indian Tribes.’’ 

This clause was agreed upon in the Convention with but 
little, if any, opposition. The debates in the Convention 
show that some of the members of that body preferred the 
term “trade” to that of “commerce” and that these terms 
were used as being synonymous. Some eminent writers on 
the Constitution have thought that the word “trade” or 
“business” would have been a better term than the word 
“commerce” but that is perhaps the most appropriate 
word that could have been used to exjoress clearly and com¬ 
prehensively, what must have been in the minds of the 
framers of the Constitution. There was an effort in the 
Convention to insert in the Constitution a provision that no 
Act which should attempt to regulate commerce should be 
passed by Congress except by a two-thirds vote of the 
members of each body thereof, but it failed. There can be 
no exact definition of the term “commerce” within the 
meaning of this clause. The word grows with the com¬ 
mercial and business development of the Nation. When the 
Constitution was framed and adopted there was but little 
“trade”, “business”, or “commerce” over which Congress 
could exercise its power of legislation, and it was a third 
of a century, or more, after the ratification of the Constitu¬ 
tion before a case requiring the construction of this clause 
reached the Supreme Court of the United States. The 
members of the Constitutional Convention were not familiar 
with the great agencies of commerce, for none of them 
were in existence. Yet the term they used in this clause 






33 


CONSTITUTION OF THE 


UNITED STATES 


was broad enough to embrace every instrumentality of 
commerce which has been recognized. 

Extent of Regulation. A recent Constitutional writer of 
eminent ability has well said: 

*‘The word ‘commerce’ is not limited to traffic; to buy¬ 
ing and selling and the exchange of commodities; but it 
comprehends navigation also; and all that is included in 
commercial intercourse between nations and parts of na¬ 
tions in all its branches, and is regulated by corresponding- 
rules for carrying on that intercourse; navigation and 
intercourse upon the natural highways by water, is under 
the regulating control of Congress; wherever it is not 
exclusively limited to a single State. So is transporta¬ 
tion and intercourse by railroads between different parts 
of the country; and it is, therefore, competent for Con¬ 
gress to provide that all railroad companies may carry 
passengers, mails, and property, over their roads, boats, 
bridges, and ferries, on their way from one State to an¬ 
other, and receive compensation therefor, and may connect 
with other roads so as to form continuous lines for trans¬ 
portation of the same to their places of destination; also 
to provide for the construction of bridges over navigable 
rivers between States, and to provide that the bridges when 
constructed shall be free for the crossing of all trains of 
railroads terminating on the sides of the rivers respectively. 
Congress may also regulate communication by telegraph 
between the States, and where a State has given exclusive 
privileges which would preclude free intercourse, it may 
under this power and the power to establish postoffices and 
postroads, provide for the construction of competing lines.’’ 

Perhaps the definition of Mr. Justice Harlan is as compre¬ 
hensive as any that has been given: 


“Commerce among the several States comprehends traf¬ 
fic, intercourse, trade, navigation, communication, the 
transit of persons, and the transmission of messages by 
telegraph—indeed, every species of commercial intercourse 
among the several States—but not to that commerce ‘com¬ 
pletely internal, which is carried on between man and man 
in a State, or between different parts of the same State and 
which does not extend to, or affect other States’.” 11 

u Adair v. U. S., 208 U. S. 176, 177, 



34 CONSTITUTION OF THE UNITED STATES 


Commerce with Foreign Nations. It was the regulation 
of commerce with foreign nations which was in the mind 
of the Convention more than its regulation among the 
States. Domestic commerce was little developed when the 
Constitution was ratified, whereas foreign commerce had 
reached large proportions. 


Mr. Justice Bradley said in Railroad v. Maryland: 


“No doubt commerce by water was principally in the 
minds of those who framed and adopted the Constitution. 
At that time transportation by land was entirely performed 
on common roads, and in vehicles drawn by animal 
power.” 12 


The subject of foreign commerce probably first came up 
for consideration in the Circuit Court of the United States 
in 1823, when Mr. Justice Washington said: 


‘ ‘ Commerce with foreign nations can mean nothing more 
than intercourse with those nations for the purposes of 
trade, be the object of the trade what it may.” 13 

Chief Justice Marshall said: 


“It has been universally admitted that these words com¬ 
prehend every species of commercial intercourse between 
the United States and foreign nations. No sort of trade 
can be carried on between this country and any other, to 
which this power does not extend.” 14 

It was said by Justice Daniel, in Veazie v. Moor: 15 

“Commerce with foreign nations must signify commerce 
which in some sense is necessarily connected with these 
nations, transactions which either immediately, or at some 
state of their progress, must be extra-territorial. The 
phrase can never be applied to transactions wholly internal, 
between citizens of the same community, or to a polity 
and laws, whose ends, and purposes, and operations, are 
restricted to the territory, and soil, and jurisdiction, of 
such community. Nor can it be properly concluded, that, 
because the products of domestic enterprise in agriculture 


12 21 Wall. (U. S.) 470. 

is Corfield v. Coryell, 4 Wash. C. C. 371. 

14 Gibbons v. Ogden, 9 Wheat. (U. S.) 193. 
is J4 Howard 573. 


CONSTITUTION OF THE UNITED STATES 35 

or manufactures, or in the arts, may ultimately become 
the subjects of foreign commerce, with the control of the 
means or the encouragements by which enterprise is fos¬ 
tered and protected, is legitimately within the import of 
the phrase foreign commerce, or fairly implied in any inves¬ 
titure of the power to regulate such commerce.” 

From these decisions it is apparent that “commerce with 
foreign nations” may be classed as that commerce, trade, 
or business, which is carried on between the people or citi¬ 
zens of the United States and the people or citizens of 
other nations. 

Commerce Among the Several States. At the time of 
the framing or ratifying of the Constitution this provision 
was not of much interest, nor did it become so until many 
years after the establishment of the government, hut it is 
now one of the most important of all the provisions of the 
Constitution. By the term “commerce among the several 
States’’ is meant that commerce which is common to, or 
relates to, more than a single State. 

Chief Justice Marshall, in considering this clause, said: 
4 ‘ The word ‘ among ’ meant ‘ intermingled with ’. That busi¬ 
ness, or commerce, which is conducted among or between 
the people of a State and which relates wholly to objects 
or property within the State and which ordinarily embraces 
local trading, selling, or buying, does not come within the 
meaning of “Commerce among the several States.” The 
control of such matters was never surrendered by the 
States to Congress, and that body has no power to regulate 
them. They are purely internal matters over which the 
State retains control. Neither can Congress regulate the 
production or raising of products in a State, simply because 
they may become objects or subjects of interstate commerce 
by being shipped or transported out of a State into another 
State or a foreign country. 

In Veazie v. Moor, 10 is found the following language: 

“A pretension as far reaching as this, would extend to 
contracts between citizen and citizen of the same State, 

14 Howard 568-574, 




3G CONSTITUTION OF THE UNITED STATES 

would control the pursuits of the planter, the grazier, the 
manufacturer, the mechanic, the immense operation of the 
collieries, the mines, and furnaces of the country; for there 
is not one of these avocations, the results of which may 
not become the subjects of foreign commerce, and be borne 
either by turnpikes, canals, or railroads, from point to 
point within the several States toward an ultimate destina¬ 
tion. Such a pretension would effectually prevent or para¬ 
lyze every effort at internal improvement by the several 
States; for it cannot be supposed, that the States would 
exhaust their capital and their credit, in the construction 
of turnpikes, canals, and railroads, the remuneration de¬ 
rivable from which, and all control over which, might be 
immediately wrested from them, because such public works 
would be facilities for a commerce which whilst availing 
itself of those facilities, was unquestionably internal, al¬ 
though immediately or ultimately it might become foreign.” 

Interstate Shipments. An interstate shipment is from a 
place in one State to some place in another State. The 
place of destination may be only to an adjoining State, or 
it may be through several States. Where the delivery of 
goods is made at the place designated in the agreement for 
their transportation, if it is in another State than the one 
from which the goods start, it is an interstate shipment. 
In exercising its power in the regulation of commerce Con¬ 
gress can employ any agency which to it seems essential. 
So it can construct, or delegate the construction to others, 
of highways which extend through different States, or the 
erection of bridges over navigable waters which separate 
States, or a canal leading from one State to another. To 
carry out its purpose in creating such interstate agencies, 
it may authorize the creation of a corporation and confer 
upon it the power to appropriate private property which 
may be necessary for its uses, subject to the right of the 
owner to compensation. 

Congress could not enact legislation for the control of 
commerce on a river or lake which is wholly within the 
territorial limits of a single State, but if such river or lake 
forms a connection with some other body of navigable 
water, and the two form a channel or highway over which 


CONSTITUTION OF THE UNITED STATES 


37 


interstate commerce is transported, then Congress has 
authority to regulate such commerce. How far the power 
of Congress to regulate commerce extends, has been, and 
still is, of great importance and it has been a perplexing 
problem for the courts. When does such power begin and 
cease? When does the power of a State to regulate com¬ 
merce begin and cease? These questions have come before 
the courts many times and it would be impossible to notice 
all the decisions in a work of this character. Suffice it to 
say that the doctrine was well stated by Mr. Justice Field, 
in Glouster Ferry Company v. Pennsylvania: 17 

“The power to regulate that commerce as well as com¬ 
merce with foreign nations, vested in Congress, is the power 
to prescribe the rules by which it shall be governed, that 
is, the conditions upon which it shall be conducted; to deter¬ 
mine when it shall be free and when subject to duties or 
other exactions. . . . The subjects upon which the 

power may be exerted are of infinite variety. While with 
reference to some of them which are local, and limited 
in their nature or sphere of operation, the States may 
prescribe regulations until Congress intervenes and as¬ 
sumes control of them; yet, when they are National in their 
character, and require uniformity of regulation affecting 
alike all the States, the power of Congress is exclusive .’’ 

Distinction between Federal and State Commerce. Tn 
the later case of Kidd v. Pearson, 18 the doctrine was stated 
by Mr. Justice Lamar in this language: 

“The line which separates the province of the Federal 
authority, over the regulation of commerce, from the powers 
reserved to the States, has engaged the attention of this 
court in a great number and variety of cases. The decis¬ 
ions in these cases, though they do not in a single instance 
assume to trace that line throughout its entire extent, or 
to state any rule further than to locate the line in each 
particular case as it arises, have almost uniformly adhered 
to the fundamental principles which Chief Justice Marshall, 
in the case of Gibbons v. Ogden, 19 laid down as to the 
nature and extent of the grant of power to Congress on 

17 114, U. S. 203. 19 9 Wheat. 1. 

is 128 U. S. 16. 


38 


CONSTITUTION OF THE UNITED STATES 


this subject, and also of the limitations, express and im¬ 
plied, which it imposes upon State legislation with regard 
to taxation, to the control of domestic commerce, and to 
all persons and things within its limits, of purely internal 
concern. 

“According to the theory of that great opinion, the su¬ 
preme authority in this country is divided between the 
Government of the United States, whose action extends 
over the whole Union, but which possesses only certain 
powers enumerated in its written Constitution,, and the 
separate governments of the several States, which retain 
all power not delegated to the Union. The power ex¬ 
pressly conferred upon Congress to regulate commerce is 
absolute and complete in itself, with no limitations other 
than are prescribed in the Constitution; is to a certain 
extent exclusively vested in Congress so far free from 
State action; is co-extensive with the subjects on which 
it acts, and can not stop at the external boundary of a 
State, but must enter into the interior of every State when¬ 
ever required by the interests of commerce with foreign 
nations, or among the several States. This power, how¬ 
ever, does not comprehend the purely internal domestic 
commerce of a State which is carried on between man and 
man within a State, or between different parts of the 
same State.’’ 

In the still later case of Field v. Barber Asphalt Co., 20 Mr. 
Justice Day laid down the following rule: 

“In this day of multiplied means of intercourse between 
the States, there is scarcely any contract which cannot in 
a limited or remote degree be said to affect interstate 
commerce. But it is only direct interferences with the free¬ 
dom of such commerce that bring the case within the exclu¬ 
sive domain of Federal legislation.” 

Agencies of Interstate Commerce. Among the principal 
agencies which Congress may use in its regulation of inter¬ 
state commerce are navigation, railroads, bridges, the tele¬ 
graph, and the telephone. Almost any instrumentality 
which can be employed as a common carrier of information, 
or in the transportation of property from one State to 


20 194 U. S. 623. 


39 


CONSTITUTION OF r ITIE UNITED STATES 


another may be said to be an agency of Congress in the 
regulation of interstate commerce. 

Commerce with the Indians. The power to regulate com¬ 
merce among the Indian tribes is the last one enumerated 
as belonging to Congress. For the accomplishment of this 
object Congress may invade the territory of a State when 
an Indian tribe resides, or is located within it. So Congress 
may grant a franchise in the Indian country and authorize 
corporations to transact business therefor. 

The power of Congress over the Indian tribes in the regu¬ 
lation of commerce is complete. It may govern the Indians 
by entering into treaties with them, or by legislation, and 
so long as they retain their tribal relations the States have 
no authority to govern them, nor are the Indians in their 
tribal relations under allegiance to any State government. 

Business Not Subject to the Interstate Power of Congress. 
Some kinds of business, though partaking of the nature of 
interstate business, is not subject to the control of Congress. 
Among this class may be mentioned insurance, the slaugh¬ 
tering of live animals, and the preparation of their carcasses 
for transportation to other States, the business of coal 
mining, hiring of laborers to work in other States, dealing 
in futures in another State, sending of clothes to another 
State to be laundered and then returned. None of these, 
the courts have held, constitute interstate commerce and 
consequently are not subject to Congressional regulation. 
Neither is the transportation of a corpse a subject of inter¬ 
state commerce. 

State Products Not Subject to Federal Control. It has 
been claimed with much earnestness and argued in and out 
of Congress with much plausibility, that the manufacture 
of articles in a State which were designed for transporta¬ 
tion, sale, and use, in other States, should be subject to 
Congressional regulation under the commercial clause of 
the Constitution. Unless the decisions of the Supreme 
Court upon this very important question should be reversed, 
this doctrine will never find recognition by the judicial 
department of the government. The principle is a very 




40 


CONSTITUTION OF THE UNITED STATES 


dangerous one. If Congress could assume control of a 
manufacturing institution situated in a State, for tlie sole 
reason tliat its manufactured articles are made for sale in 
other States and countries, it could, for tlie same reason, 
and with the same justification, assume control of every 
farm and superintend the planting, raising, and gathering, 
of every crop in the United States. Every kind of business 
which was carried on with the purpose of selling its prod¬ 
ucts beyond State lines would be subject to Federal control 
and supervision. The raising of stock by the agriculturist, 
the growing of fruit by the farmer and the fruiterer, and 
every possible enterprise in which men engage for a liveli¬ 
hood, if it was intended to sell their products in another 
State, would be subject to the control of the American Con¬ 
gress. Such a doctrine would paralyze home rule and 
break down the last vestige of State rights, and is certainly 
repugnant to the spirit of the Constitution. 

Manufacturing Institutions. An effort was made in the 
constitutional convention to extend the control of Congress 
over manufacturing institutions, but it failed to pass. The 
question, however, is settled by the decision of the Supreme 
Court. That tribunal, in Kidd v. Pearson, 21 through Mr. 
Justice Lamar, said: 

“No distinction is more popular to the common mind, 
or more clearly expressed in economic and political litera¬ 
ture, than that between manufactures and commerce. Manu¬ 
facture is transformation—the fashioning of raw materials 
into a change of form for use. The functions of commerce 
are different. The buying and selling and the transporta¬ 
tion incidental thereto, constitute commerce; and the regu¬ 
lation of commerce in the Constitutional sense embraces 
the regulation at least of such transportation. The legal 
definition of the term, as given by this court in County of 
Mobile v. Kimball, 22 is as follows: ‘Commerce with for¬ 
eign countries and among the States, strictly considered, 
consists in intercourse and traffic, including in these terms 
navigation, and the transportation and transit of persons 
and property, as well as the purchase, sale, and exchange, 
of commodities.’ If it be held that the term includes the 

21 Idem, footnote 20. 22 102 U. S. 691, 702. 


CONSTITUTION OF THE UNITED STATES 41 

regulation of all sueli manufactures as are intended to be 
the subject of commercial transactions in the future, it is 
impossible to deny that it would also include all productive 
industries that contemplate the same thing. The result 
would be that Congress would be invested, to the exclusion 
of the States, with the power to regulate, not only manu¬ 
factures, but also agriculture, horticulture, stock raising, 
domestic fisheries, mining ... in short, every branch 
of human industry. For is there one of them, that does 
not contemplate, more or less clearly, an interstate or for¬ 
eign market! Does not the wheat grower of the North¬ 
west, and the cotton planter of the South, plant, cultivate, 
and harvest, his crop with an eye on the prices at Liver¬ 
pool, New York, and Chicago! The power being vested in 
Congress and denied to the States, it would follow as an 
inevitable result that the duty would devolve on Congress 
to regulate all of these delicate, multiform, and vital inter¬ 
ests—interests which in their nature are and must be, local 
in all the details of their successful management.” 

Intrastate Commerce. While the Constitution confers 
upon Congress the power to regulate commerce among the 
States, there is a commerce which belongs exclusively to 
the States and over which Congress has no authority or 
control. This is what is termed intrastate commerce— 
being commerce which begins and ends entirely within the 
limits of a State. When the jurisdiction of the State begins 
and ends, over such commerce, has not been an easy ques¬ 
tion to determine; but it was held in Coe v. Canal: 23 

4 4 Goods do not cease to be part of the general mass of 
property in the State, subject, as such to its jurisdic¬ 
tion, and to taxation in the usual way, until they have been 
shipped or entered with a common carrier for transporta¬ 
tion to another State, or have been started upon such trans¬ 
portation in a continuous route or journey.” 

How far a State can legislate concerning its domestic 
concerns is not of easy determination, for such questions 
lead very close to the line of demarcation between intra¬ 
state and interstate commerce. Some examples, however, 
can be given to show how far the State’s authority has gone 

23 116 IT. S. 51 7, 527. 





42 CONSTITUTION OF THE UNITED STATES 

in that direction and been sustained by the Supreme Court. 
A State statute which made it a misdemeanor to sell, or 
have in one’s possession for sale, any article upon which 
shall have been printed or placed for advertisement pur¬ 
poses, a representation of the American flag, but which 
exempted from its operation, any book, newspaper, peri¬ 
odical, etc., on which should be printed, or placed a repre¬ 
sentation of such flag, “ disconnected from any advertise¬ 
ment,” was held not to be in conflict with the Federal Con¬ 
stitution. So it has been held that a State statute which 
required three of its regular daily trains running each 
way, except Sunday, to stop at towns which had three 
thousand inhabitants, for a time sufficient to allow pas¬ 
sengers to get on and off the train, was a proper exercise of 
the States and over which Congress has no authority or 
clause of the Constitution. But a statute of a State which 
would prevent a foreign corporation from making a con¬ 
tract which involved interstate commerce would be in vio¬ 
lation of the commerce clause. 

Interstate and Intrastate Commerce. The delicate but 
important questions growing out of State and interstate 
commerce were fully considered in the Northern Securities 
Company v. United States, 24 where it was said: 

“So far as the Constitution of the United States is con¬ 
cerned, a State may, indeed, create a corporation, define 
its powers, prescribe the amount of its stock and the mode 
in which it may be transferred. It may even authorize 
one of its corporations to engage in commerce of every 
kind; domestic, interstate, and international. The regula¬ 
tion or control of purely domestic commerce of a State 
is, of course, with a State, and Congress has no direct 
power over it so long as what is done by the State does 
not interfere with the operations of the General Govern¬ 
ment, or any legal enactment of Congress. A State, if it 
chooses so to do, may even submit to the existence of com¬ 
binations within its limits that restrain its internal trade. 
But neither a State corporation nor its stockholders can, 
by reason of the non-action of the State, or by means of 
any combination among such stockholders, interfere with 

24 193 U. S. 349. 


43 


CONSTITUTION OF THE UNITED STATES 

the complete enforcement of any rule lawfully devised by 
Congress for the conduct of commerce among the States 
or with foreign nations; for, as we have seen, interstate 
and international commerce is by the Constitution under 
the control of Congress, and it belongs to the legislative 
department of the Government to prescribe rules for the 
conduct of that commerce. If it were otherwise, the decla¬ 
ration in the Constitution of its supremacy, and of the 
supremacy as well of the laws made in pursuance of its 
provisions, was a waste of words. Whilst every instru¬ 
mentality of domestic commerce is subject to State control, 
every instrumentality of interstate commerce may be 
reached and controlled by national authority, so far as 
to compel it to respect the rules for such commerce law¬ 
fully established by Congress. No corporate person can 
excuse a departure from, or violation of that rule under 
the plea, that, that which it has done, or omitted to do, is 
permitted or not forbidden, by the State under whose au¬ 
thority it came into existence. We repeat that no State 
can endow any of its corporations, or any combination of 
its citizens, with authority to restrain interstate or inter¬ 
national commerce, or to disobey the National will as mani¬ 
fested in legal enactments of Congress. So long as Con¬ 
gress keeps within the limits of its authority—as defined 
by the Constitution, infringing no rights recognized or se¬ 
cured by that instrument—its regulations of interstate and 
international commerce, whether founded in wisdom or not, 
must be submitted to by all. ’ ’ 

State Regulation of Commerce. The power of the State to 
regulate purely intrastate commerce is as well established 
as the power of Congress to regulate commerce among the 
States. The general supervision of their own affairs, such 
as levying and collecting local taxes, the laying out and con¬ 
structing highways, the building of bridges, and the control 
of those multitudinous matters which pertain to the strictly 
domestic affairs of the States, were never surrendered by 
them to the general Government and there is no authority 
in the general Government to control them. But it was 
held in Western Union Telegraph Company v. State of 
Kansas ex rel, that a State statute which provided that, 
before a foreign corporation engaged in interstate business 



44 


CONSTITUTION OF THE UNITED STATES 


should have authority to do local business in that State, it 
should pay to the State a certain per cent on its authorized 
capital was an interference with interstate commerce. 
The Western Union Telegraph Co., a corporation doing busi¬ 
ness in the State, refused to comply with the statute and 
was ousted from doing local business. The Supreme Court 
of the United States, by a vote of six to three, held the 
statute to be in violation of the commerce clause of the 
Constitution, and said: 

4 ‘The right to carry on interstate commerce is not a 
privilege granted by a State, but a Constitutional right 
of every citizen of the United States, and Congress alone 
can limit the right of operation to engage therein. ’ ’ 

“The rule that a State may exclude foreign corporations 
from its limits, or impose such terms and conditions on 
their doing business therein as it deems consistent with its 
public policy, does not apply to foreign corporations en¬ 
gaged in interstate commerce. ” 

It was further held that the statute was a burden and 
tax on the interstate business of the telegraph company, 
and was in violation of the Constitution. 

But it was held in the later case of Chicago, Bock Island 
& Pacific Bailway Co. v. State of Arkansas, 25 that a State 
statute which prescribes a reasonable number for the 
crews of interstate freight trains was not an obstruction to, 
or burden on interstate business, and that a State could 
prescribe proper police regulations in relation to interstate 
trains in the absence of Congressional action on the matter. 

§ 27. Naturalization. Congress is authorized by the 
Constitution “to establish a uniform rule of Naturalization, 
a power which it has never exercised. The subject of 
Naturalization is of very great interest and importance, 
and it is difficult to understand why Congress has never 
exercised the power conferred on it by the Constitution to 
pass a uniform law on the subject. Any authority which 
Congress should choose to exercise on the subject would bo 
exclusive, for no State could by any act of its legislature 

25 219 U. S. 453. 


CONSTITUTION OF THE UNITED STATES 


45 


interfere with the regularity of Congressional action 
thereon. By authorizing Congress “ to establish an uniform 
rule of Naturalization,” the States surrendered their power 
to regulate the subject whenever Congress chose to do so. 
Mr. Hamilton said on this subject: 

“The power to establish ‘an uniform rule of Naturaliza¬ 
tion throughout the United States’ must necessarily be 
exclusive; because if each State had power to prescribe a 
distinct rule, there could be no uniform ride.” 

In the celebrated Dred Scott case, 26 Chief Justice Taney 
said: 

“The Constitution has conferred on Congress the right 
to establish an uniform rule of Naturalization, and this 
right is evidently exclusive, and has always been held by 
this court to be so.” 

Methods of Naturalization. There are several methods 
of Naturalization. It may be done by treaty, by which an 
entire nation can be naturalized at once. This was done 
by the treaty with Mexico in 1848. So it may be done by 
a joint resolution of Congress, as in the case of Texas when 
it was admitted into the Federal Union. But the most 
common method is by statute. Congress can prescribe the 
terms upon which one becomes a citizen of the United 
States, but the States prescribe the terms upon which he 
becomes a citizen thereof. Congress can also prescribe 
who shall not be naturalized. The exercise of this power 
is an essential incident of sovereignty. A government must 
surely have the right to protect itself from those persons 
whom it classes as “undesirable citizens”, and this power 
may be exercised by the government through its executive 
officers. Naturalization has been denied to a Burmese, a 
member of the Mongolian race, a Japanese, an anarchist, 
and a socialist, who advocated the doctrine that the govern¬ 
ment should own and operate all the railroads and transpor¬ 
tation lines, and the forced sale of lands which were owned 
by private persons in excess of what was necessary to make 
a living, the excess to be given to those who had no lands. 

26 Scott v. Sanford, 19 How. (U. S.) 393. 






46 


CONSTITUTION OF THE UNITED STATES 


§28. Bankruptcy. Coupled with the power “to estab¬ 
lish a uniform rule of Naturalization” is the power con¬ 
ferred upon Congress “to establish uniform laws on the 
subject of bankruptcy.” 

The word bankrupt is of doubtful origin. Blackstone 
thought it came from the word bancs or banque which 
meant the bench or counter which was used by trades¬ 
men, and the word rupters, which meant broken, mean¬ 
ing that one’s business place was gone or broken up. Other 
writers have thought the word derivable from the French 
word route, which signifies a trace or track, so that a 
bankrupt was one who had moved his banque without leav¬ 
ing a trace or track behind. Still others thought the term 
was derivable from the Italian expression banca rota, which 
signifies the breaking of the benches of those who failed in 
business by their angry creditors. 

Before the Constitution was adopted the term bankruptcy 
was regarded in the States as meaning the same as insolv¬ 
ency, and each State regulated such proceedings by its own 
method. 

It was late in the Convention which framed the Consti¬ 
tution before the subject of bankruptcy was suggested to 
that body. None of the original plans for a Constitution 
contained any clause relating to the subject. Its appear¬ 
ance in the Constitution is due to Charles Pinckney, who 
introduced the clause in the Convention. When any State 
law comes in conflict with a law of Congress relating to 
bankruptcy it must give way, for the control of the subject 
is exclusive in Congress, and the power of that body to pass 
uniform laws on the subject includes both involuntary and 
voluntary bankruptcy. Prior to 1841, the laws of Congress 
did not permit of voluntary bankruptcy, but in that year 
Congress passed a bill which became a law under which a 
debtor could voluntarily go into bankruptcy. It was the 
purpose of the framers of the Constitution in authorizing 
bankruptcy proceedings to secure an equal distribution 
among his creditors of the property of the bankrupt. 

The uniformity contemplated by the provision refers to 


CONSTITUTION OF THE UNITED STATES 


47 


geographical uniformity. It lias been held that a bankrupt 
law is uniform when it reaches the whole of the property 
of the bankrupt, and is applied to the liquidation of his 
debts in the order of priority. As a general rule a discharge 
in bankruptcy operates as a discharge and release from all 
the bankrupt’s obligations, yet there are some exceptions 
to the rule. Thus, when a debt has been induced by means 
of fraud involving moral turpitude, or where a judgment 
has been obtained as a result of a criminal assault on a 
man’s wife, the discharge in bankruptcy does not discharge 
the debtor in such cases. 

§ 29. To Coin Money and Regulate Its Value. This great 
power was conferred upon Congress by the unanimous vote 
of the Convention and without debate on the question. The 
clause originated with the Committee of Detail, but the 
author is unknown. To coin money is to convert metal into 
money under the authority of the Government by stamping 
the metal so it will represent certain standards of value- 
The object to be attained in conferring this power upon 
Congress was to secure a currency which would possess a 
uniform legal value. It is one of the greatest powers which 
the Constitution grants to Congress, and is exclusive in 
that body. If the power had been given to both Congress 
and the States, or left to the States alone, there could have 
been no constant or uniform value of the coins of the 
country. Each State would have established the value of 
its own coin, and this would have resulted in confusion and 
disorder. 

Mr. Madison in the Federalist 27 said of this power: 

“All that need be remarked on the power to coin money, 
regulate the value thereof, and of foreign coin is, that by 
providing for this last case, the Constitution has supplied 
a material omission in the Articles of Confederation. The 
authority of the existing Congress is restrained to the regu¬ 
lation of coin struck by their own authority, or that of the 
respective States. It must be seen at once that the pro¬ 
posed uniformity in value of the current coin, might be 


27 The Federalist, No. 46. 




48 


CONSTITUTION OF THE UNITED STATES 


destroyed by subjecting* that of the foreign coin to the 
different regulations of the different States.” 

§ 30. To Fix Standard Weights and Measures. Accom¬ 
panying the power to coin money and regulate its value, is 
the power “To fix the standard of weights and measures.” 
If each State could fix a standard of its own for weights 
and measures, it is easy to see how business could be dis¬ 
turbed and confusion follow. Important as this power is, 
Congress has never exercised it. In 1866, it legalized the; 
metric system in the United States, and in 1873, it made the 
brass troy pound weight, the standard troy pound of the 
United States, but it has not passed an act fixing the stand¬ 
ard of weights and measures. 

§ 31. Punishment of Counterfeiting. The power to 
punish for counterfeiting the securities and current coin of 
the United States, includes the counterfeiting of national 
bank bills, and the treasury notes of the government. While 
Congress may enact laws under this clause, the States can 
also provide punishment for those who counterfeit the coin 
and securities of the country. 

§32. Postoffices and Postroads. Under the Articles 
of Confederation Congress had the power of: 

“Establishing and regulating postoffices from one State 
to another through all the United States, and exacting such 
postage on the papers passing through the same, as may be 
requisite to defray the expenses of the said office . 9 ’ 

Under this authority on the 26th of July, 1775, it estab¬ 
lished a “line of posts” from Falmouth in New England 
to Savannah in Georgia, and also established a general post- 
office. In 1782, a general law for the regulation of the 
“postoffices of the United States of America” was passed. 
In 1786, the Postmaster General was authorized to make 
contracts for the transportation of mail throughout the 
United States by stage carriers. The term “post” is 
taken from the French word “poste”, meaning “post- 
office-mail”, and may be traced back to the Latin, and 
meant originally a fixed place or station. The word “post” 


CONSTITUTION OF THE UNITED STATES 


49 


originally meant in tlie United States a place or office where 
mail was received and distributed. From this came the 
expressions “postoffice” or “postroad”. Any place where 
mail is lawfully received and distributed is a postoffice. 
Paschal says, “It includes an office, house, tent, booth, boat, 
vessel, car, wagon, or box.” 

The power extends to the extablishing of “Postroads” 
as well as “Postoffices”. Judge Cooley says : 28 

“Every road within a State, including railroads, canals, 
turnpikes, and navigable waters, existing or created within 
a State, becomes a postroad when by law or by the action 
of the postoffice department provision is made for the trans¬ 
portation of the mail upon, or over it. Whether by the 
power to establish postroads any more was intended than 
a power to designate or point out what roads shall be 
mail roads, and the right of way along them when so desig¬ 
nated, has always been, and is still made a question. Many 
statesmen and jurists have contended that the power com¬ 
prehends the laying out and constructing any roads which 
Congress may deem proper, and needful for the conveyance 
of the mails, and the keeping them in due repair for the 
purpose. This last view has been acted upon by Congress 
in some instances. The power to establish postoffices in¬ 
cludes everything essential to a complete postal system un¬ 
der Federal control and management, and the power to 
protect the same by providing for the punishment as crimes, 
of such acts as would tend to embarrass or defeat the pur¬ 
pose had in view in their establishment. And whatever 
place is officially kept as a place of deposit of mailable mat¬ 
ter is a postoffice, though it be merely a desk, or a trunk, 
or box carried about a house or from one building to 
another. ’ 9 

It was said in Ex parte Jackson , 29 by Justice Field: 

“The power vested in Congress to establish postoffices 
and postroads, authorizes not merely the designation of 
the routes over which the mail shall be carried, and the 
offices where letters and other documents shall be received 
to be distributed and forwarded, but the carriage of the 
mail, and all measures necessary to secure its safe and 
speedy transit, and the prompt delivery of its contents. 

28 Cooley’s Constitutional Law, (2d ed.) 85, 86. 29 96 U. S. 732. 






50 


CONSTITUTION OF THE UNITED STATES 


The power possessed by Congress embraces the regulation 
of the entire postal system of the country. The right to 
designate what shall be carried necessarily involves the 
right to determine what shall be excluded.’’ 

As a general rule, the Government lias used roads already 
established for postroads, and has not constructed roads 
simply for that purpose, but it, nevertheless, has that 
power. The free mail routes so common in the country 
districts are established over or along the lines of country 
roads. 

The postoffice department of the government was estab¬ 
lished May 8, 1794, though a temporary postoffice was 
created in 1789. Perhaps no branch of the government has 
grown so rapidly as the post office department, and cer¬ 
tainly none is so near the people. 

§ 33. To Promote the Progress of Science and Useful 
Arts. The Constitution confers upon Congress the power 
“To promote the Progress of Science and useful Arts.” 
This is done by granting to authors and inventors, for a 
time fixed by Congress, the exclusive right to the profits 
of their writings and discoveries. The interest which the 
law confers upon an author in his writings is called copy¬ 
right. It has been defined to be “The exclusive right of 
printing, or, otherwise multiplying copies of a published 
intellectual production, and publishing and vending the 
same.” The interest which a person has in his invention 
is called a patent. While the Constitution employs the 
terms “the progress of science and useful arts”, it does 
not undertake to define these terms. But it purports to pro¬ 
mote the progress of them by giving authors and inventors 
the exclusive right to control them, for a limited term of 
years. What may be the subject of copyright is regulated 
by Congress, and so is the term for which a copyright can 
be granted. A patent has been defined to be: 

“A contract by which the Government secures to the 
patentee the exclusive right to vend and use his invention 
for a few years, in consideration of the fact that he has 


CONSTITUTION OF THE UNITED STATES 


51 


perfected and described it, and lias granted its use to the 
public forever after.’’ 

The granting of a patent, like that of a copyright, is reg¬ 
ulated by Federal statute. 

The control over copyrights and patents is exclusive in 
Congress, and the States have no power either to regulate 
or restrict patents or copyrights, except in the exercise of 
their authority under the police power in reference to arti¬ 
cles which have been patented. 30 

§ 34. To Constitute Tribunals Inferior to the Supreme 
Court. Another power expressly conferred upon Congress 
by the Constitution is that of establishing “Tribunals infe¬ 
rior to the Supreme Court”. This clause confers upon Con¬ 
gress the power to establish such courts inferior to the 
Supreme Court as to it may seem proper. In the exercise 
of this power Congress has established the United States 
District, and United States Circuit Courts, the Court of 
Claims, the Court of Commerce, and the United States Court 
of Appeals, as well as courts in the Territories, and the Dis¬ 
trict of Columbia, and in such foreign territory as has 
been annexed to the United States, such as the Philippine 
Islands, Porto Rico, Hawaii, and Alaska. 

§ 35. To Punish Piracies and Felonies Committed on the 
High Seas. At the adoption of the Constitution, piracies 
and felonies on the high seas were of common occurrence, 
and w r ere offenses against the laws of nations. This is why 
Congress was given jurisdiction over them. The Articles 
of Confederation conferred substantially the same power 
upon Congress concerning piracies and felonies, except that 
it did not authorize Congress to define what piracies and 
felonies were. Congress, however, under this clause, has 
the power to define these terms as well as punish those 
guilty of them. Both these offenses are now practically 
unknown on the high seas. The term “high seas” was 
originally defined as “the unenclosed waters of the ocean, 
and also those waters on the seacoast which are without 

' so See artiele on Patents and Copyrights. 


52 


CONSTITUTION OF THE UNITED STATES 


the boundaries of low water mark.” But by more recent 
decision it has been extended to include the great lakes. 

In United States v. Rodgers, 31 it was held: 

“The term ‘high’ in one of its significations is used to 
denote that which is common, open, and public. Thus every 
road, or way, or navigable river, which is used freely by 
the public is a ‘high’ way. So a large body of navigable 
water other than a river, which is of an extent beyond 
the measurement of one’s unaided vision, and is open and 
unconfined, and not under the exclusive control of any one 
nation or people, but is the free highway of adjoining 
nations or people, must fall under the definition of ‘high 
seas’ within the meaning of the statute. We may as appro¬ 
priately designate the open, unenclosed waters of the lakes 
as the high seas of the lakes, as to designate similar waters 
of the ocean as the high seas of the ocean, or similar waters 
of the Mediterranean as the high seas of the Mediter¬ 
ranean. ’ ’ 

§ 36. To Declare War, Grant Letters of Marque and 
Reprisal. The next power which the Constitution confers 
upon Congress is to declare war. “To declare war” 
means the manner of announcing that war has begun. War 
is the “prosecution of a nation’s right by force.” Under 
the Articles of Confederation it required the assent of nine 
States before Congress could declare war. Congress is the 
only body which can declare war, but it must be a foreign 
war, for Congress cannot declare war against any State of 
the Union, or any number of States. It has been held that 
in case of a war with Indians a declaration of Congress on 
the subject is not necessary, nor even an announcement by 
the President, but that the beginning of military opera¬ 
tions would be sufficient. The manner of declaring war has 
not always been the same. War between the United States 
and Great Britain in 1812 was declared by Congress pass¬ 
ing an Act: 

“That War be, and the same is hereby declared to exist 
between the United Kingdom of Great Britain and Ireland, 
and the dependencies thereof, and the United States of 
America and their territories.” 

si 150 U. S. 258, 259. 


CONSTITUTION OF THE UNITED STATES 


53 


The war between the United States and Mexico, was 
declared by Congress passing a resolution that by the Act 
of Mexico a state of war existed between the two countries. 
But it is strictly the function of the political or legislative 
branch of the government to determine the existence of 
war; and such determination by that department of the 
government is binding and conclusive upon the courts, and 
precludes them from the power of hearing proof and deter¬ 
mination, as a question of fact, as to whether a war exists 
or not. 

When war has been declared and proclaimed by the Pres¬ 
ident, the courts will take judicial notice of the fact. The 
right to declare war involves the right to prosecute the 
same, to raise armies and transport troops to any part of 
the United States or elsewhere, to arm, equip, and direct the 
movements of the navy. 

Letters of Marque and Reprisal . In connection with the 
power to declare war, the Constitution confers upon Con¬ 
gress the power to grant letters of marque and reprisal, 
and make rules concerning captures on land and water. 

4 ‘Marque” has been defined to be “the commission 
granted by the government to a private individual to take 
the property of a foreign State, or of the citizens or sub' 
jects of such State, as a reparation for an injury com¬ 
mitted by such State, its citizens or subjects,” while “re¬ 
prisal” means “a taking again; a taking back; the repos¬ 
sessing one’s self of a thing unjustly taken by another.” 

The authority conferred upon Congress “to make rules 
concerning captures on land and water” largely explains 
itself. It means that Congress shall have power to adopt 
such rules as it shall see proper, concerning property cap¬ 
tured from the enemy in time of war, whether the prop¬ 
erty was upon land or upon the sea. 

§ 37. To Raise and Support Armies. Another authority 
conferred by the Constitution upon Congress is that of 
raising and supporting armies. This power Congress could 
not exercise under the Articles of Confederation. Under 
the provisions of that instrument it could only make 


54 


CONSTITUTION OF THE UNITED STATES 


demand upon each State that it furnish its proportion of 
soldiers. But if a State determined not to do so, there 
was no way in which Congress could force it to comply 
with its request. This weakness in the Articles of Confed¬ 
eration was one of the causes that led to the adoption of 
the Federal Constitution and was directly, perhaps, the 
reason why this clause was adopted. 

There does not seem to be any limitation upon the powers 
of Congress respecting its authority to raise and support 
armies. Considering that question, the Supreme Court said 
in the Tarble case: 32 

“ Among the powers assigned the National Government, 
is the power 4 to raise and support armies’. The execution 
of this power falls within the line of its duty; and its con¬ 
trol over the subject is plenary and exclusive. It can deter¬ 
mine, without question from any State authority, how the 
armies shall be raised, whether by voluntary enlistment or 
forced draft, the age at which the soldier shall be received, 
and the period for which he shall be taken, the compensa¬ 
tion which he shall be allowed, and the service to which 
he shall be assigned. And it can provide the rules for the 
government and regulation of the forces after they are 
raised, define what shall constitute military offenses, and 
prescribe their punishment. No interference with the exe¬ 
cution of this power of the National Government in the 
formation, organization, and government of its armies 
by any State officials could be permitted without greatly 
impairing the efficiency, if it did not utterly destroy this 
branch of the public service.” 

Under this power Congress can prescribe the number 
of men who may enlist, the duration of their enlistment, and 
the rate of compensation which a soldier shall receive. It 
can also provide the necessary officers, and all the equip¬ 
ment and supplies, and establish military academies where 
military and other sciences and branches of knowledge 
pertaining to warfare, may be taught. It may also pass 
laws giving bounties to soldiers who enlist in the service 
of the Government, and provide pensions for those who 

32 13 Wall. (U. S.) 397. 


CONSTITUTION OF THE UNITED STATES 


55 


have served in the army. But Congress has no power to 
appropriate money to be used in raising and supporting 
armies for a period longer than two years. The object of 
this provision is to place it beyond the power of the Presi¬ 
dent to keep a standing army, if Congress did not deem it 
necessary. The War Department was established August 
7, 1789. 

§ 38. To Provide and Maintain a Navy. The authority 
which Congress may exercise with reference to raising and 
supporting armies applies to providing and maintaining 
a navy. Congress may authorize the purchasing, or build¬ 
ing of such number of vessels and of such character, and 
may arm, and prepare them for war under this power, as it 
sees fit. It may also authorize the erection of a naval acad¬ 
emy where the science of naval warfare may be taught, 
and it can pass laws for the control of the navy and for 
the punishment of those committing offenses against the 
navy. The naval department of the Government was estab¬ 
lished April 30,1798. 

To Make Buies for the Government and Regulation of 
Land and Naval Forces. After having conferred upon 
Congress the power to raise and support the army, and 
to provide and maintain a navy, it was natural that the 
Constitution should confer upon that body the power to 
make rules for the government and regulation of the land 
and naval forces. 

The rules and regulations which Congress may adopt 
with reference to the government and regulation of the 
army and navy have the force of law; but they must not 
contravene the power which the President may exercise as 
Commander in Chief of the Army and Navy. 

§ 39. The Militia. The next authority conferred upon 

Congress is: 

“To provide for calling forth the Militia to execute 
the Laws of the Union, suppress Insurrection, and repel 
Invasions.” 

Under the Articles of Confederation each State main- 


5G CONSTITUTION OF THE UNITED STATES 

tained a force called the militia, which was liable to be 
called into military service when necessary. 

The term militia has been defined by Act of Congress. 
It 4 4 consists of every able-bodied male citizen of the re¬ 
spective States, Territories, and the District of Columbia, 
and every able-bodied male of foreign birth who has de¬ 
clared his intention to become a citizen, who is more than 
eighteen and less than forty-five years of age.” 33 The same 
act divides the militia into two classes, 4 4 The organized 
Militia, known as the National Guard, and the remainder 
known as the Reserve Militia.” 

The power of Congress to call the militia into active 
service is limited by the Constitution to three purposes: 
First, to execute the laws of the Union; second, to suppress 
insurrections; third, to repel invasions. 

The 44 Laws of the Union” are the laws passed by Con¬ 
gress in contradistinction to those passed by the States. 

An 44 Insurrection” has been defined as, 44 a rising against 
civil or political authority, the open and active opposition 
of a number of persons to the execution of the law.” 

44 Invasion” is the entrance into a country of a public 
enemy for the purpose of declaring, or carrying on war; in 
other words, an unlawful coming into a country by a public 
enemy. ’ ’ 

The Constitution does not undertake to define the means 
which Congress may take to suppress insurrections or repel 
invasions. It leaves these matters to Congress. 

Organizing, Arming, and' Disciplining the Militia . A still 
further power is conferred upon Congress: 

4 4 To provide for organizing, arming, and disciplining the 
Militia, and for governing such Part of them as may be 
employed in the Service of the United States, reserving 
to the States respectively, the Appointment of the Officers, 
and the Authority of training the Militia according to the 
discipline prescribed by Congress.” 

Mr. Hamilton has said of the first part of this clause: 

33 U. S. Stat. At Large, vol. 32, 775. 



CONSTITUTION OF THE UNITED STATES 


~ A) 

57 

“The power of regulating the militia, and of command¬ 
ing its services in times of insurrection and invasion, are 
natural incidents to the duties of superintending the com¬ 
mon defense, and of watching over the internal peace of 
the Confederacy. It requires no skill in the science of 
war to discern that uniformity in the organization and 
discipline of the militia, would be attended with the most 
beneficial effects, whenever they were called into service 
for the public defense. It would enable them to discharge 
the duties of the camp, and of the field, with mutual intel¬ 
ligence and concert; an advantage of peculiar moment in 
the operations of an army; and it would fit them much 
sooner to acquire the degree of proficiency in military func¬ 
tions, which would be essential to their usefulness. This 
desirable uniformity can only be accomplished by confiding 
the regulation of the militia to the direction of the National 
authority.” 34 

The power conferred upon Congress by this clause is a 
natural sequence of the powers which had already been 
given Congress over the militia. It would have been incon¬ 
sistent to have conferred upon that body a power to call 
upon the militia to enforce the laws, suppress insurrections 
and repel invasions, and to deprive it of the power for 
organizing and disciplining the troops. Reserving to the 
States the right to appoint the officers of the militia was 
made in order to remove any prejudice that might exist 
toward such a military body being under control of Con¬ 
gress, and because it would bring the main force into more 
direct connection with the officers who were to command 
them. 

§ 40. District of Columbia, and Forts, Magazines, Etc. 

Another provision of the Constitution which confers ex¬ 
press power upon Congress is the following: 

“To exercise exclusive Legislation, in all cases whatso¬ 
ever, over such District (not exceeding ten Miles square) 
as may, by Cession of particular States, and the Accept¬ 
ance of Congress, become the Seat of the Government of 
the United States; and to exercise like Authority over all 
Places purchased by the Consent of the Legislature, of the 

34 The Federalist, No. 29. 






58 


CONSTITUTION OF THE UNITED STATES 


State in which the Same shall be, for the Erection of Forts, 
Magazines, Arsenals, Dock-Yards, and other needful 
Buildings. ,, 

It will be observed that this clause confers jurisdiction 
upon Congress, first, over the seat of Government, and 
second, over all places purchased by the consent of the 
legislature of the State in which the same shall be, for the 
erection of forts, magazines, arsenals, dock-yards, and other 
needful buildings. At the time the Constitution was framed 
there had been no cession of any place for a seat of Gov¬ 
ernment as contemplated by this clause; but the clause was 
intended to operate upon such cession when it should be 
made. In 1788, the State of Maryland ceded to Congress 
a district ten miles square for the location of the seat of 
Government, and in the following year, the State of Vir¬ 
ginia made a similar cession. These cessions, having been 
accepted by Congress, that body on the 16th of July, 1790, 
passed a bill which was approved February 7, 1801, by 
which the territory ceded by the respective States was 
made the permanent seat of Government. Subsequently 
Congress relinquished its jurisdiction over a portion of this 
territory (that lying in the State of Virginia). 

Madison’s Views on the Seat of Government . In the 43d 
number of the Federalist, Mr. Madison said: 

“The indispensable necessity of complete authority at 
the seat of Government carries its own evidence with it. 
It is a power exercised by every legislature of the Union, 
I might say of the world, by virtue of its general supremacy. 
Without it, not only the public authority might be insulted, 
and its proceedings be interrupted with impunity, but a 
dependence of the members of the General Government on 
the State comprehending the seat of the Government, for 
protection in the exercise of their duties, might bring on 
the National councils an imputation of awe or influence, 
equally dishonorable to the Government, and dissatisfac¬ 
tory to the other members of the Confederacy. This con¬ 
sideration has the more weight, as the gradual accumula¬ 
tion of public improvements at the stationary residence of 
the Government, would be both too great a public pledge 
to be left in the hands of a single State, and would create 


CONSTITUTION OF THE UNITED STATES 


59 


so many obstacles to a removal of the Government, as still 
further to abridge its necessary independence. The extent 
of this Federal district is sufficiently circumscribed to sat¬ 
isfy every jealousy of an opposite nature. And as it is 
to be appropriated to this use, with the consent of the 
State, ceding it; as the State will no doubt provide in the 
compact for the rights and the consent -of the citizens 
inhabiting it; as the inhabitants will find sufficient induce¬ 
ments of interest, to become willing parties to the cession; 
as they will have their voice in the election of the Govern¬ 
ment, which is to exercise authority over them; as a munici¬ 
pal legislature for local purposes, derived from their own 
suffrages, will of course be allowed them; and as the author¬ 
ity of the legislature of the State, and of the inhabitants 
of the ceded part of it, to concur in the cession, will be 
derived from the whole people of the State, in their adop¬ 
tion of the Constitution, every imaginable objection seems 
to be obviated.’’ 

The power which Congress may exercise over the District 
of Columbia is necessarily exclusive, as are all places pur¬ 
chased by the Government with the consent of the legisla¬ 
ture of the State in which the purchase or cession is made. 
Congress may legislate in the District of Columbia for the 
people and property located therein, the same as a State 
may legislate for its people and property. So it may exer¬ 
cise the power directing the expense of public improvement 
in the District of Columbia. 

Congressional Control over Forts , Etc . Mr. Madison 
in commenting upon the necessity of congressional control 
over the places purchased for the erection of forts, maga¬ 
zines, arsenals, dock-yards and other needful buildings has 
said: 

“The public money expended on such places, and the 
public property deposited in them, require that they should 
be exempt from the authority of the particular State. Nor 
would it be proper, for the places on which the security of 
the entire Union may depend, to be in any degree depend¬ 
ent on a particular member of it. All objections and scru¬ 
ples are here also obviated, by requiring the concurrence 
of the States concerned, in every such establishment.” 




GO 


CONSTITUTION OF THE UNITE!) STATES 


And tlie Supreme Court in Fort Leavenworth Railroad 
Co. v. Lowe, 35 said: 

“The power of exclusive legislation is to be exercised 
over places purchased by consent of the legislatures of the 
States in which they are situated, for the specific purposes 
enumerated. It wmild seem to have been the opinion of 
the framers of the Constitution that, without the consent 
of the States, the new government would not be able to 
acquire lands within them; and, therefore, it was provided 
that when it might acquire such lands for the erection of 
forts and other buildings for the defense of the country, 
or the discharge of other duties devolving upon it, and the 
consent of the States in which they were situated was ob¬ 
tained for their acquisition, such consent should carry with 
it political dominion, and legislative authority over them. 
Purchase with such consent was the only mode then thought 
of for the acquisition by the General Government of title 
to lands in the States. Since the adoption of the Consti¬ 
tution this view has not generally prevailed. Such con¬ 
sent has not always been obtained, nor supposed nec¬ 
essary, for the purchase by the General Government of 
lands within the States. If any doubt has ever existed as 
to its power thus to acquire lands within the States, it has 
not had sufficient strength to create any effective dissent 
from the general opinion. The consent of the States to the 
purchase of lands within them for the special purposes 
named is, however, essential, under the Constitution, to the 
transfer to the General Government, with the title, of polit¬ 
ical jurisdiction and dominion. Where lands are acquired 
without such consent, the possession of the United States, 
unless political jurisdiction be ceded to them in some other 
way, is simply that of an ordinary proprietor. The prop¬ 
erty in that case, unless used as a means to carry out the 
purposes of the Government, is subject to the legislative 
authority and control of the States equally with the prop¬ 
erty of private individuals.” 

Owing to the exclusive jurisdiction which is conferred 
upon Congress over places ceded to the government, the 
States have no authority over such places, and the inhab¬ 
itants thereof are not inhabitants of the State who can 
exercise civil or political rights under State laws; and 

35 114 U. S. 530-531. 


G1 


CONSTITUTION OF THE UNITED STATES 


crimes committed in such places are punishable in the Fed¬ 
eral and not in the State Courts. But to confer such exclu¬ 
sive jurisdiction by Congress, the consent of the State must 
have been obtained, and the jurisdiction is limited to the 
lands and buildings thereon. 

§ 41. To Make All Necessary and Proper Laws. The last 
power which the Constitution expressly confers upon Con¬ 
gress is one of the most important powers which that 
instrument confers upon that body. It is: 

“To make all Laws which shall be necessary and proper 
for carrying into Execution the foregoing Powers, and all 
other Powers vested by this Constitution in the Govern¬ 
ment of the United States or in any Department or Officer 
thereof. ’ ’ 

It would have been difficult for the framers of the Con¬ 
stitution to have conferred upon Congress more complete 
authority than is done by this clause. The author of the 
clause, as it appears in the Constitution, is not known; but 
in his plan for a Constitution, Mr. Pinckney had the follow¬ 
ing provision: 

“To make all laws for carrying the foregoing powers into 
execution. ’ ’ 


The clause met with much opposition while the Consti¬ 
tution was being submitted to the States for ratification. 
Mr. Madison said: 


“Few parts of the Constitution have been assailed with 
more intemperance than this; yet on a fair investigation 
of it, as has been elsewhere shown, no part can appear more 
completely invulnerable. Without the substance of this 
power, the whole Constitution would be a dead letter. Those 
who object to the article, therefore, can only mean that 
the form of the provision is improper. But have they con¬ 
sidered whether a better form could have been substituted? 

“There are four other possible methods, which the Con¬ 
vention might have taken on this subject. They might have 
copied the second article of the existing Confederation, 
which would have prohibited the exercise of any power not 
expressly delegated; they might have attempted a positive 
enumeration of the powers comprehended under the general 



/ 62 CONSTITUTION OF THE UNITED STATES 

terms ‘necessary and proper’; they might have attempted 
a negative enumeration of them, by specifying the powers 
excepted from the general definition: they might have been 
altogether silent on the subject; leaving these necessary 
and proper powers to construction and inference.” 

Mr. Hamilton, in the Federalist, in defense of this power, 
among other things, said: 

“It has been the source of much virulent invective, and 
petulant declamation, against the proposed Constitution; 
it has been held up to the people in all the exaggerated 
colors of misrepresentation, as the pernicious engine by 
which their local governments were to be destroyed, and 
their liberties exterminated—as the hideous monster whose 
devouring jaws would spare neither sex nor age, nor high 
nor low, nor sacred nor profane; and yet, strange as it may 
appear, after all this clamor, to those who may not have 
happened to contemplate it in the same light, it may be 
affirmed with perfect confidence, that the constitutional 
operation of the intended Government would he precisely 
the same, if this clause was entirely obliterated, as if it 
was repeated in every article. It is only declaratory of a 
truth, which would have resulted by necessary and unavoid¬ 
able implication from the very act of constituting a Fed¬ 
eral Government, and vesting it with certain specified pow¬ 
ers. This is so clear a proposition that moderation itself 
can scarcely listen to the railings which have been so 
copiously vented against this part of the plan, without 
emotions that disturb its equanimity.” 36 

Cooley on Necessary and Express Powers. Speaking of 
this clause, Judge Cooley says: 

“The import of the clause is, that Congress shall have 
all the incidental and instrumental powers necessary and 
proper to carry into, execution all the express powers. It 
neither enlarges any power specifically given, nor is it a 
grant of any new power to Congress, but it is merely a 
declaration for the removal of all uncertainty, that the 
means for carrying into execution those otherwise granted 
are included in the grant. The grant of the principal must 
include the necessary and proper incidents, without which 
the grant would be ineffectual. It would be as undesirable 
as it would be impracticable to enumerate all the means 

36 The Federalist, No. 33. 


CONSTITUTION OF THE UNITED STATES 


63 


by the use of which the powers expressly conferred shall 
be exercised, since what may be suitable and proper means 
specified, would defeat the grant itself. The clause dis¬ 
tinctly negatives any suggestion that so unwise and imprac¬ 
ticable a restriction was intended. Those who made the 
Constitution, conferred upon the Government of their crea¬ 
tion sovereign powers; they prescribed for it a sphere of 
action, limited, indeed, as respects subjects and purposes, 
but within which it should move with Supreme Authority, 
untrammelled except by the restraints which were expressly 
imposed, or which were implied in the continued existence 
of the States and of free institutions. But there can be no 
such a thing as a sovereign without a choice of the means 
by which to exercise sovereign powers.” 37 

This clause largely gives life and vitality to the Consti¬ 
tution. It contemplates that if there has been a failure in the 
enumerated powers, that the power may be supplied under 
this provision. The words ‘‘necessary and proper” in the 
clause are of special significance, for the laws which Con¬ 
gress is empowered by the clause to make, must be neces¬ 
sary and proper for carrying into execution the powers 
already enumerated. If, therefore, Congress should pass 
a law not necessary and proper for the execution of the ex¬ 
pressly enumerated powers it would not be Constitutional. 

In the Legal Tender Cases it was held: 

“By the settled construction and the only reasonable 
interpretation of this clause, the words ‘necessary and 
proper’ are not limited to such measures as are absolutely 
and indispensably necessary, without which the powers 
granted must fail of execution; but they include all appro¬ 
priate means which are conducive or adapted to the end 
to be accomplished, and which in the judgment of Congress 
will most advantageously effect it.” 

Mr. Webster said: 

“This clause means that the Congress may judge of the 
true intent and just interpretation of the specific powers 
granted to it, and may judge also of what is necessary and 
proper for executing those powers. If Congress is to judge 
of what is necessary for the execution of its powers, it 

37 Cooley’s Constitutional Law, (2d ed.) 95. 


64 


CONSTITUTION OF THE UNITED STATES 


must, of necessity, judge of the extent and interpretation 
of those powers.” 

Mr. Calhoun, referring to the clause, remarked: 

“A more comprehensive provision can not be imagined. 
It carries with it all powers necessary and proper to the 
execution of the granted powers, be they lodged where they 
may; and vests the whole, in terms not less explicit, in 
Congress. And here let me add, in passing, that the provis¬ 
ion is as wise as it is comprehensive. It deposits the right 
of deciding what powers are necessary for the execution of 
the granted powers, where, and where only, it can be lodged 
with safety—in the hands of the law making power; and 
forbids any department or officer of the Government from 
exercising any power not expressly authorized by the Con¬ 
stitution or the laws—thus making ours emphatically a 
Government of law and Constitution 

An eminent Constitutional writer has said of this section 
that “it w r as the most solid and excellent work done by the 
Convention. ’ ’ 

Such were the enumerated powers which the Constitu¬ 
tion conferred upon Congress. That Congress may exer¬ 
cise other powers which are implied from other provi¬ 
sions of the Constitution is beyond question. But it is 
largely through the enumerated powers that the Constitu¬ 
tion draws its life and source and strength. 


CHAPTER III 

NEGATIVE POWERS OF CONGRESS 


§ 42. The Slave Trade. We now come to the considera¬ 
tion of those powers which are usually regarded as the neg¬ 
ative powers of Congress. In other words, an enumeration 
of powers which Congress is prohibited from exercising. 

The list begins with the following provision: 

“The Migration or Importation of such Persons as any 
of the States now existing shall think proper to admit, shall 
not be prohibited by the Congress prior to the Year one 
thousand eight hundred and eight, but a tax or duty may 
be imposed on such Importation, not exceeding ten dollars 
for each Person. ’ ’ 

This clause was intended as a restriction on the slave 
trade, although the word “slave” does not appear in the 
Constitution. Under the clause there was to be no inter¬ 
ference on the part of Congress with the importation of 
slaves until the expiration of the year 1808, after which 
that body could prohibit their migration or importation. 
This clause now has but little interest except as a matter 
of history, but it formed at the time of its adoption one of 
the “compromises” of the Convention. 

§ 43. Habeas Corpus. A second restriction upon the 
power of Congress is found in the following provision of 
that instrument: 

“The Privilege of the Writ of Habeas Corpus shall not 
be suspended, unless when in Cases of Rebellion or Invasion 
the public Safety may require it. ’ ’ 

The writ of habeas corpus 1 is the great writ of personal 
liberty. It is of such ancient origin that the time when it 
was first invoked can not be determined. 

It was in force in England under Edward III., whose 

i See article on Extraordinary Legal Remedies. 

■> 

3 

*> J 
*» 1 ,) 


T 


65 





66 


CONSTITUTION OF THE UNITED STATES 


reign began in 1327, and ended in 1377. At the time the 
Constitution was framed and adopted in the United States, 
it was in force in each of the States. 

It is a writ directed to a person or officer having some 
other person in charge, and commanding him to produce 
the body of the prisoner at a certain time and place, with 
his reasons for restraining him. It is not prescribed in the 
Constitution who shall have the power to suspend the writ, 
and the omission to make this provision lias been the cause 
of much controversy between jurists. It is the privilege 
of the writ—that is, the right of one deprived of his liberty, 
to have the writ issued in his behalf—which can not be sus¬ 
pended. Some judges have held that it was for the legis¬ 
lative branch of the Government to determine whether the 
public safety required the suspension of the writ, while 
other authorities have said that it is a matter for the courts 
to determine. That is now the generally accepted doctrine. 
There is a notable exception to the general terms of the 
clause and that is that in cases of “ rebellion or invasion, if 
the public safety requires it,” the writ may be suspended. 
Just why the exception was inserted in the clause has been 
the subject of controversy. Pearson, Chief Justice, said: 

“In England it was a vexed question whether Parliament 
could suspend the privilege of the writ of habeas corpus 
unless in cases of rebellion or invasion. There was some 
precedent for suspending it when there was no rebellion 
or invasion, but the authority of these precedents was 
questioned. In framing the Constitution of the United 
States, the purpose was to settle this vexed question and 
to limit the power expressly to times of rebellion or inva¬ 
sion, so the occasions on which the privilege of the writ 
may be suspended are found in the Constitution in so many 
words.” 

But there may have been additional reasons why the 
exception was made. During a rebellion or invasion the 
conditions of society are greatly disturbed; agitators incite 
trouble, and encourage riots and disorder, and greater vig¬ 
ilance is necessary on the part of the Government than in 
times of peace. The framers of the Constitution may have 


CONSTITUTION OF THE UNITE!) STATES 67 

thought it advisable as a matter of safety to the country 
that the power to suspend the privilege of the writ at such 
times should be given. But the rebellion, or invasion, con- 
tenqdated cannot be merely imaginary or expected, nor 
merely threatened, but must be a real invasion, or rebellion, 

I and then it can only be suspended when public safety 
requires it. 

This is the second limitation upon the power of issuing 
the writ. 

Who May Issue the Writ . Congress has never sus¬ 
pended the writ of habeas corpus except during the Civil 
War. The Supreme Court, and some other Federal Courts, 
have the power to issue the writ and so have the respective 
judges thereof, for the purpose of inquiring into the cause 
of the detention of the person. 

Judge Cooley says: 

“In no case shall the writ extend to a prisoner in jail, 
unless where he is in custody under or by color of the 
authority of the United States; or is committed for trial 
before some court thereof; or is in custody for an act done 
or omitted in pursuance of a law of the United States, or 
of an order, process, or decree of a court, or judge thereof; 
or is in custodv in violation of the Constitution, or of a 
law or treaty of the United States; or, being a subject, or 
a citizen of a foreign State and domiciled therein, is in cus¬ 
tody for an act done, or omitted, under any alleged right, 
title, authority, privilege, protection, or exemption, claimed 
under the commission, or order, or sanction of any foreign 
State, or under color thereof, the validity and effect whereof 
depend upon the law of nations; or unless it is necessary 
to bring the prisoner into the court to testify.’’ 2 

This applies to the authority of the Federal Courts to 
issue the writ and not to the State Courts. State judges 
may issue the writ also, for their authority to inquire into 
unlawful restrictions upon personal liberty, was not surren¬ 
dered by the States at the adoption of the Constitution. 
The State Courts may, therefore, inquire into the cause why 
a person within their limits is restrained of his liberty, and 

2 Cooley’s Constitutional Law, 134, 135. 



G8 


CONSTITUTION OF THE UNITED STATES 


discharge him if such a restraint is held illegal; but the 
issuing of the writ is not a proceeding in error, and if juris¬ 
diction is conferred upon an inferior court to hear such 
matter, the proceedings will not be reviewed or set aside, 
for illegality or error of judgment. 

§ 44. Bills of Attainder. Another restriction placed 
upon Congress is that it is prevented from passing a “Bill 
of Attainder, or ex post facto Law.” 

A bill of attainder has been defined to be “a legislative 
act which inflicts punishment without a judicial trial. 
Where punishment is less than death, the act is termed ‘a 
bill of pains and penalties’.” 

Of this restriction, Mr. Justice Miller has said: 3 

“The prohibition against passing bills of attainder is one 
which was intended to guard against a danger which has 
passed out of the memory of the present generation. Up 
to the time of the formation of this Constitution, the Par¬ 
liament of England had been in the habit, by legislative 
enactments, of declaring individuals attainted for treason, 
for murder, for conspiracies, and for other crimes, espe¬ 
cially crimes against the Government. This declaration of 
attainder by the legislative body was accompanied, either 
impliedly or by the express terms of the bill, with a depriva¬ 
tion of all rights of property and of all capacity to transmit 
property by descent, or acquire it in that manner, in addi¬ 
tion to punishments such as death, and other cruelties. 
This kind of proceeding was had, not in a court of justice, 
nor with a trial by jury, nor with any of the usual modes 
of ascertaining the guilt or innocence of the party accused, 
but the legislature, the Parliament, either with or without 
inquiry, or with such insufficient inquiry as they chose to 
make—generally in the absence of the victim—proceeded 
at once to make charges, decide upon the guilt of the party 
and announce the punishment, thus acting in all instances 
as the sovereign, the legislative, and judicial power at the 
same time. This was done without any regularly estab¬ 
lished mode of procedure or rules of decision. Our ances¬ 
tors, who had just come through the revolutionary struggle 
for independence, and who felt that most of them might 
have been subjected to this form of punishment by the 
Parliament of Great Britain, determined to eradicate this 

3 Miller, The Constitution, 584, 585. 


CONSTITUTION OF THE UNITED STATES 


GO 


system entirely from tlie powers confided either to the Fed¬ 
eral Government, or to the States, and hence this 
prohibition. ’’ 


The second restriction upon the power of Congress in this 
clause is that it shall pass no ex post facto law. 

§ 45. Ex Post Facto Law. An ex post facto law is one 
which inflicts a punishment for an act which was not pun¬ 
ishable at the time it was committed, or imposes a punish¬ 
ment in addition to that which was prescribed when the 
crime was committed. On this subject also Mr. Justice 
Miller’s views may be quoted: 

“Ex post facto laws are laws intended to operate in the 
way of punishing crimes which are passed after the offense 
or crime for which the party is being tried was committed. 
It was at one time suggested that this kind of enactment 
might be held to be any law which affected the rights of a 
person, civilly or criminally, after those rights had been 
acquired or established in accordance with existing laws. 
This, however, is a mistake, and the phrase e ex post facto 
laivs’ has application alone to laws which relate to crimes 
and criminal proceedings, because it was used in that lim¬ 
ited sense by our English ancestors long previous to the 
formation of the Constitution.” 


§ 46. Capitation or Other Direct Tax. Capitation comes 
from the Latin word caput, meaning head, by which is 
meant a tax upon heads, or persons, or a poll tax. Poll is 
akin to the German word polle, meaning the head of a per¬ 
son. So that capitation taxes and poll taxes are taxes by 
the head. Mr. Hamilton said—in the thirty-sixth number 
of the Federalist—of Poll Taxes: 


“As to poll taxes, I without scruple confess my disap¬ 
probation of them; and though they have prevailed from 
an early period in the New England States, which have 
uniformly been the most tenacious of their rights, I should 
lament to see them introduced into practice under the Na¬ 
tional Government. But does it follow, because there is a 
power to lay them, that they will actually be laid? Every 
State in the Union has power to impose taxes of this kind; 
and yet in several of them they are unknown in practice. 
Are the State Governments to be stigmatized as tyrannies, 




70 


CONSTITUTION OF THE UNITED STATES 


because they possess this power? If they are not, with 
what propriety can the like power justify such a charge 
against the National Government, or even be urged as an 
obstacle to its adoption? As little friendly as I am to the 
species of imposition, I still feel a thorough conviction, 
that the power of having recourse to it, ought to exist in 
the Federal Government. There are certain emergencies 
of nations, in which expedients—that in the ordinary state 
of things ought to be foreborne—become essential to the 
public weal. And the Government, from the possibility of 
such emergencies, ought ever to have the option of making 
use of them. The real scarcity of objects in this country, 
which may be considered as productive sources of revenue, 
is a reason peculiar to itself, for not abridging the discre¬ 
tion of the National councils in this respect. There may 
exist certain critical and tempestuous conjunctures of the 
State, in which a poll tax may become an inestimable re¬ 
source. And as I know nothing to exempt this portion of 
the globe from the common calamities that have befallen 
other parts of it, I acknowledge my aversion to every pro¬ 
ject that is calculated to disarm the Government of a single 
weapon, which in any possible contingency might be use¬ 
fully employed for the general defense and security.” 

§ 47. Articles Exported from Another State. A further 

limitation of the power of Congress as to taxes or duties is 
found in the clause, “No Tax or Duty shall be laid on Arti¬ 
cles exported from any State.” This is the most direct 
prohibition or restraint which the Constitution places upon 
the taxing power of Congress. 

In the License Tax Cases, it was held by the Supreme 
Court: 

“The power of Congress to tax is a very extensive power. 
It is given in the Constitution, with only one exception and 
only two qualifications. Congress can not tax exports, and 
it must impose direct taxes by the rule of apportionment, 
and indirect taxes by the rule of uniformity. The object 
of the Constitution in establishing this restraint was to 
prevent the interference by Congress with exports.” 

Mr. Madison said: 

“The prohibition of a tax on exports resulted from the 
apparent impossibility of raising in that mode a revenue 



CONSTITUTION OF THE UNITED STATES 


71 


from the States, proportioned to tlieir ability to pay it; 
the ability of some being derived in a great measure, not 
from their exports, but from their fisheries, from their 
freights, and from commerce at large, in some of its 
branches, altogether external to the United States; the 
profits from all which being invisible and intangible, would 
escape a tax on exports. ” 

§ 48. Giving of Preferences Prohibited. The next pro¬ 
hibition upon Congress is in this language: 

“No Preference shall be given by any Regulation of Com¬ 
merce or Revenue to the Ports of one State over those of 
another. Nor shall Vessels bound to, or from, one State, 
be obliged to enter, clear, or pay Duties in another.” 

This clause, it has been held, operates only as a limitation 
on the powers of Congress and does not restrain the States 
in the regulation of their internal affairs. It purports to 
preserve the commercial relationship of the States. It was 
adopted in the Convention without much contest. 

§ 49. Drawing Money from the Treasury. The prohibi¬ 
tion against money being drawn from the Treasury is found 
in this clause: 

“No money shall be drawn from the Treasury, but in 
Consequence of Appropriations made by Law; and a Regu¬ 
lar Statement and Account of the Receipts and Expendi¬ 
tures of all public Money shall be published from time to 
time.” 

The expression “but in consequence of appropriations 
made by law” means an appropriation provided for by Con¬ 
gress and approved by the President. This is the only way 
in which money can be drawn from the Treasury. Even the 
Secretary of the Treasury cannot pay out money which has 
not been appropriated. No appropriation of money was 
made by Congress except by passing a bill till the second 
session of the Twenty-Seventh Congress—a period of more 
than fifty years after the establishment of the Govern¬ 
ment—but later appropriations have been made by joint 
resolution. 

The language that “a regular statement and account of 





CONSTITUTION OF THE UNITED STATES 


72 

tlie receipts and expenditures of all public money sliall be 
published from time to time” created some discussion in 
the Convention, as it was claimed it was impossible of exe¬ 
cution. But this language was finally adopted. 

Benjamin Franklin, as a member of the Convention, 
strongly advocated the publicity of accounts. 

§ 50. Titles of Nobility. The last express restriction of 
the power of Congress which the Constitution contains is 
in this language: 

“No Title of Nobility shall be granted by the United 
States; and no Person holding any Office of Profit or Trust 
under them, shall, without the Consent of the Congress, 
accept of any present, Emolument, Office, or Title of any 
kind whatever, from any King, Prince, or foreign State.” 

This provision was introduced into the Convention by 
Mr. Pinckney, who probably took it from the Constitutions 
of Delaware and Maryland. The Articles of Confederation 
provided: 

“Nor shall any person holding any office of profit or 
trust in the United States or any of them, accept of any 
present, emolument, office, or title of any kind whatever 
from any king, prince, or foreign State, nor shall the United 
States in Congress assembled grant any titles of nobility.” 

As to conferring titles of nobility, Mr. Hamilton said: 

“Nothing need be said to illustrate the importance of the 
prohibition of titles of nobility. This may truly be denomi¬ 
nated the cornerstone of Republican Government; for so 
long as they are excluded, there can never be serious danger 
that the Government will be any other than that of the 
people.’ ’ 

Mr. Hamilton’s plan of the Constitution contained this 
provision: 

“Nor shall any person holding an office or place of trust 
under the United States, without the permission of the 
Legislature, accept any present, emolument, office, or title, 
from a foreign prince or State.” 

Some years ago when a foreign prince visited the United 
States, lie made presents of portraits to the naval and mili- 


/ 


CONSTITUTION' OP THE UNITED STATES 73 

tary academies, and also of photographs, to several civil 
and military officers of the United States. The propriety 
of accepting these gifts was submitted to the Attorney Gen¬ 
eral by an officer of the Government. The Solicitor-Gen¬ 
eral as the acting Attorney General held that although the 
prince was only a titular prince, an acceptance of the pres¬ 
ents from him was prohibited by the Constitution. The 
opinion went so far as to say that 4 ‘even a simple remem¬ 
brance of courtesy, which from motives of delicacy recog¬ 
nizes our policy, like the photographs in this case, falls 
under the inclusion of any present of any kind whatever.’’ 
But this would seem to be carrying the doctrine of this 
clause to its extremest length. 

Mr. Jefferson when he was President accepted a bust of 
the Emperor Alexander as a present from that potentate. 
Writing of this gift, Mr. Jefferson said: 

“I had laid it down as a law for my conduct while in 
office, and hitherto scrupulously observed, to accept of no 
present beyond a book, a pamphlet, or other curiosity of 
minor value; as well as to avoid imputation on my motives 
of action, as to shut out a practice susceptible of such 
abuse. But my particular esteem for the character of the 
Emperor, places his image in my mind above the scope of 
law . 9 9 4 

^ Jefferson's Complete Works, yol. 5 , pp. 5 , 6. 










































EXAMINATION PAPER 









CONSTITUTION OF THE 
UNITED STATES 

PART I 


Read Carefully: Place your name and full address at the head of the 
paper. Any cheap, light paper like the sample previously sent you may be 
used. Do not crowd your work, but arrange it neatly and legibly. Do not 
copy the answers from the Instruction Paper; use your own words, so that we 
may be sure you understand the subject. 


1. What are the purposes of the Constitution as expressed 
in the Preamble? 

2. Of what does the first article of the Constitution treat? 

3. What is the House of Representatives? What are the 
qualifications of its members? 

4. Define the term citizen. 

5. Can a state add new qualifications for a Representative? 
Discuss. 

6. Is the Speaker of the House of Representatives a constitu¬ 
tional officer? By what authority are the other officers of the House 
chosen? 

7. What is an impeachment? Where is the power of impeach¬ 
ment lodged? 

8. What body tries an impeached officer? 

9. What are the duties and powers of the Senate of the United 
States? 

10. What is the length of a Senator’s term? Of a Represen¬ 
tative’s term? 

11. Name the qualifications of a Senator. How many Senators 
can each state have? 

12. State the origin of the term Vice President. Is there any 
provision in the Constitution for filling the office of Vice President 
in case of a vacancy? 

13. What are the duties of the Vice President? Does he have 
a vote in the Senate? If so, when? 




CONSTITUTION OF THE UNITED STATES 


14. What has the Senate to do with impeached officers? What 
is the effect of a conviction on impeachment? 

| 15. What are the privileges of members of Congress? 

16. When is a Senator prohibited from appointment to an 
office? 

17. What is the meaning of the term “revenue” in the Con¬ 
stitution? Where must revenue bills originate? Can the Senate 
amend such bills? 

18. What occurs if the President does not approve a bill when 
presented to him? How large a vote is necessary to pass a bill over 
the veto of the President? 

19. Define the express powers of Congress. Enumerate some 
of them. 

20. Define interstate commerce. What power has Congress 
over interstate commerce? 

21. "What is intrastate commerce? What power has Congress 
over it? 

22. When can a state regulate commerce? Can Congress 
regulate purely state commerce? 

23. Name and describe the different ways of naturalization. 

24. What is the power of Congress as to bankruptcy? 

25. What is meant by coining money? Can Congress exercise 
this power? 

26. By what authority does Congress establish postoffices 
and postroads? Define each. 

27. Can Congress establish any courts? If so, name such. 

28. Where is lodged the power to declare war under the Con¬ 
stitution? How is war declared? 

29. Define letters of marque and reprisal. 

30. What authority has Congress as to the Army and Navy? 

31. Name the negative powers of Congress. 

32. Define the term habeas corpus. 

33. What is a bill of attainder ? 

34. What is an ex post facto law? 

35. What is meant by a capitation tax? 

After completing the work, add and sign the following statement: 

I hereby certify that the above work is entirely my own. 

(Signed) 






























CONSTITUTION 

of the 

UNITED STATES 

PART II 


INSTRUCTION PAPER 


PREPARED BY 


DAVID K. WATSON, A.B., LL.B., LL.D. 

Former Attorney General of Ohio and Member 
of Congress. Author of “Watson on the 
Constitution of the United States” 


AMERICAN SCHOOL OF CORRESPONDENCE 

'A 

CHICAGO 

U.S. A. 


ILLINOIS 
















Copyright 1912 by 

American School oe Correspondence 


Entered at Stationers’ Hall, Eondon 
All Rights Reserved 







CONSTITUTION OF THE 
UNITED STATES 


PART II 


CHAPTER IV 

PROHIBITIONS AGAINST THE STATES 

We now come to the enumeration of those powers which 
the Constitution prohibits the States from exercising. Prior 
to the formation of the Constitution each State was a sov¬ 
ereign government except as its powers were limited by 
the Articles of Confederation. In the Convention which 
framed the Constitution, the States consented to surrender 
to the United States many of the powers which they had 
previously exercised. The enumeration of the powers which 
the States are prohibited from exercising is found in the 
last section of the first article of the Constitution. 

ABSOLUTE PROHIBITIONS 

The first clause of Article 1, Section 10, reads as follows: 

“No State shall enter into any Treaty, Alliance, or Con¬ 
federation; grant Letters of Marque and Eeprisal, coin 
Money; emit Bills of Credit; make any Thing but gold and 
silver Coin a Tender in Payment of Debts; pass any Bill of 
Attainder, ex post facto Law, or Law impairing the Obli¬ 
gation of Contracts, or grant any Title of Nobility.” 

It would have been a vain thing to have adopted a Con¬ 
stitution of the United States and then left the power with 
each individual State to enter into a treaty, alliance, or con¬ 
federation, so the power to do those things was transferred 
to the General Government. 

Copyright, 1912, by American School of Correspondence. 


75 







7G 


CONSTITUTION OF THE UNITED STATES 


§ 51. Definition of Treaty. A treaty is generally defined 
as a compact or agreement between two or more nations or 
sovereignties; while an alliance is an agreement between 
Nations or States having relation to their safety and gen¬ 
eral welfare. At the time the Constitution was adopted, 
the term “confederation” possessed a peculiar meaning. 
It designated the form of government which the colonies 
possessed during the period of the American Revolution. 
By becoming a part of the United States, each State sur¬ 
rendered the power which it had formerly exercised under 
the Articles of Confederation to enter into a treaty, alliance, 
or confederation. 

The Constitution expressly confers authority upon Con¬ 
gress, and upon the President, and upon the Judicial 
Branch of the Government, but it does not confer authority 
upon the States. This is because the States, upon becom¬ 
ing a part of the United States, surrendered most of their 
authority to the General Government. There was no rea¬ 
son, therefore, why the Constitution should increase the 
power of the States, but on the contrary should curtail it. 

Most of the prohibitions contained in this clause, having 
already been considered in the enumeration of the powers 
conferred upon Congress, the present discussion will be 
confined largely to the prohibitions against the emission 
by the States of bills of credit, and the impairment of the 
obligation of contracts. 

§ 52. Coin Money. When the subject of coining money 
was under consideration in the Constitutional Convention, 
it was moved to insert after the words “coin money”, 
“emit bills of credit, nor make anything but gold and silver 
a tender in the payment of debts.” The purpose of this 
amendment was to prohibit the States from ever issuing 
paper money. 

Mr. Sherman said he thought this was a favorable oppor¬ 
tunity for crushing paper money. The amendment was 
adopted with a single dissenting vote, which was cast by 
the State of Virginia. Mr. Madison, considering this sub¬ 
ject in the Federalist, said: 


CONSTITUTION OF THE UNITED STATES 


77 


“The extension of the prohibition to bills of credit, must 
give pleasure to every citizen, in proportion to his love of 
justice, and his knowledge of the true springs of public 
prosperity. The loss which America has sustained since 
the peace, from the pestilent effects of paper money on 
the necessary confidence between man and man; on the 
necessary confidence in the public councils ; on the industry 
and morals of the people, and on the character of repub¬ 
lican government, constitutes an enormous debt against 
the States, chargeable with this unadvised measure, which 
must long remain unsatisfied; or rather an accumulation 
of guilt, which can be expiated no otherwise than by a 
voluntary sacrifice on the altar of justice, of the power 
which has been the instrument of it. In addition to these 
persuasive considerations, it may be observed, that the 
same reasons which show the necessity of denying to the 
States the power of regulating coin, prove, with equal force, 
that they ought not to be at liberty to substitute a paper 
medium in the place of coin. ’ ? 1 

§ 53. Bills of Credit. As late as 1831, Mr. Madison wrote 
to Mr. Ingersoll: 

“The evil which produced the prohibitory clause in the 
Constitution of the United States, was the practice of the 
States in making bills of credit, and in some instances 
appraised propertj^a legal tender 

BiSs of credit liawe been defined as “a paper medium, 
intended to circulate.” In Craig v. Missouri, 2 Chief Jus 
ticemarshall said: 

“What is a bill of credit? What did the Constitution 
mean to forbid? In its enlarged, and perhaps literal sense, 
the term, ‘bill of credit’ may comprehend any instrument 
by which a State engages to pay money at a future day, 
thus including a certificate given for money borrowed. But 
the language of the Constitution itself, and the mischief 
to be prevented, which we know from the history of our 
country, equally limit the interpretation of the terms. The 
word ‘emit’ is never employed in describing those contracts 
by which a State binds itself to pay money at a future day, 
for services actually received, or for money borrowed for 
present use; nor are instruments executed for such pur- 

i The Federalist, No. 44. 2 4 Pet. (U. S.) 431. 






78 


CONSTITUTION ON THE UNITED STATES 


poses, in common language, denominated 4 bills of credit \ 
To ‘emit bills of credit’ conveys to tlie mind the idea of 
issuing paper intended to circulate through the community 
for its ordinary purposes as money, which paper is redeem¬ 
able at a future day. This is the sense in which the terms 
have been always understood.” 

The Chief Justice continues: 

“At a very early period of our colonial history, the 
attempt to supply the want of the precious metals by 
a paper medium, was made to a considerable extent, 
and the bills emitted for this purpose have been fre¬ 
quently denominated bills of credit. During the war of our 
Revolution, we were driven to this expedient; and neces¬ 
sity compelled us to use it to a most fearful extent. The 
term has acquired an appropriate meaning; and ‘bills of 
credit’ signify a paper medium, intended to circulate be¬ 
tween individuals, and between government and individ¬ 
uals, for the ordinary purposes of society. Such a medium 
has been always liable to considerable fluctuation. Its 
value is continually changing; and these changes, often 
great and sudden, expose individuals to immense loss; are 
the sources of ruinous speculations, and destroy all confi¬ 
dence between man and man. To cut up this mischief by 
the roots, a mischief which was felt through the United 
States, and which deeply affected the interest and prosper¬ 
ity of all, the people declared in their Constitution that no 
State should emit bills of credit. If the prohibition means 
anything, if the words are not empty sounds, it must com¬ 
prehend the emission of any paper medium by a State gov¬ 
ernment for the purpose of common circulation.” 

The changes wrought in the financial system of our Gov¬ 
ernment by the establishment of National Banks, and the 
issuing of greenbacks by the general Government lias ren¬ 
dered the subject of the issuance of bills of credit by the 
States less important than it formerly was. 

§54. Impairing Obligation of Contracts. The most 
important prohibition against a State contained in the Con¬ 
stitution is that which prohibits it from impairing the obli¬ 
gation of contracts. Indeed the Supreme Court, in Murray 
v. Charleston, 3 said: 

3 90 U. S. 432, 


CONSTITUTION OF THE UNITED STATES 


79 


“ There is no more important provision in the Federal 
Constitution than the one which prohibits the States from 
passing laws impairing the obligation of contracts.” 

A similar provision now exists in most of the Constitu¬ 
tions of the States, if not in all the States of the Union. 
It was late in the Constitutional Convention before this 
clause was inserted in that instrument; and the accounts 
greatly differ as to how the insertion was made or who 
was the author of the clause. But no provision of the Con¬ 
stitution is of more importance, although it received but 
little consideration in the Convention. It has been the 
source of more litigation and more cases have gone to the 
Supreme Court of the United States involving its construc¬ 
tion than any single clause in the Constitution, unless it is 
the one which relates to interstate commerce. Judge Cooley 
said of it: 

“It is remarkable that this very important clause was 
passed over almost without comment during the discussions 
preceding the adoption of that instrument, though since its 
adoption no clause which the Constitution contains has been 
more prolific of litigation, and has given rise at times to 
more angry controversy. It is twice alluded to in the 
papers of the Federalist; and though its great importance 
is assumed, it is evident that the writer had no conception 
of the prominence it was to hold in the Constitutional dis¬ 
cussions or the very numerous cases to which it was to be 
applied and practiced.” 

To What the Prohibition Extends. The Constitution does 
not prohibit a State from passing a law impairing contracts, 
but the prohibition goes against passing a law impairing 
the obligation of contracts. It, therefore, becomes impor¬ 
tant to obtain a correct understanding of the word “obli¬ 
gation”. In Edwards v. Kearzey , 4 Mr. Justice Swayne 
gives the etymological definition of the term “obligation”. 

“It is the act of obliging or binding; that which obli¬ 
gates ; the binding power of a vow, promise, oath, or con¬ 
tract. The word is derived from the Latin word ‘obligatio’, 


4 96 U. S. 600. 






80 


CONSTITUTION OF THE UNITED STATES 


tying lip; and that from the verb ‘obligo’, to bind or tie up; 
to engage by the ties of a promise or oath, or form of law; 
and ‘obligo’ is compounded of the verb ‘ligo’, to tie or bind 
fast, and the preposition ‘ob’ which is prefixed to increase 
its meaning.’’ 

In the early case of Sturges v. Crowninshield , 5 Mr. Chief 
Justice Marshall said: 

1 ‘ A contract is an agreement in which a party undertakes 
to do, or not to do, a particular thing. The law binds him 
to perform his undertaking, and this is, of course, the 
obligation of his contract .” 

The obligation of a contract then is the power, or force 
in the law, which binds or compels one making a contract 
to complete it. 

A full discussion of the question was given by Mr. Justice 
Washington in Ogden v. Saunders , 6 where he said: 

“The term obligation, when applied to contracts, was 
well considered and weighed by those who framed the Con¬ 
stitution, and was intended to convey a different meaning 
from what the prohibition would have imported without 
it. It is this meaning of which we are all in search. What 
is it then, which constitutes the obligation of a contract V 9 

ITe then adopts Chief Justice Marshall’s definition in 
Sturges v. Crowninshield , 7 and says: 

“I readily assent now, as I did then to this definition. 
‘It is the law which binds the parties to perform their agree¬ 
ment. The law, then, which has this binding obligation, 
must govern and control the contract in every shape in 
which it is intended to bear upon it, whether it affect its 
validity, construction or discharge.’ ” 

Later Judicial Decisions. Among the later decisions of 
the Supreme Court we find the following expressions on this 
important subject. Mr. Justice Field, in Louisiana v. 
Mayor of New Orleans , 8 said: 

“Within the meaning of this clause the obligation of 
a contract, in the Constitutional sense, is the means pro- 

5 4 Wheat. (U. S.) 122. 7 Idem, footnote 5. 

6 12 Wheat. 213 ; 257. 8 102 U. S. 203. 


81 


CONSTITUTION OF THE UNITED STATES 

vided by law by which it can be enforced—which the par¬ 
ties can be obliged to perform. Whatever legislation les¬ 
sens the efficacy of this means in part the obligation.” 

Mr. Justice Miller in his work on the Constitution uses 
this language in reference to this question: 

“So far as the law is concerned, the obligation of a con¬ 
tract is the means by which the law enforces a legal duty, 
and it is that with which the law and the Constitution 
deals. In this sense the obligation of a contract consists 
in the authority or power which the law gives to enforce 
its performance, or to give a remedy for its non¬ 
performance.^ 

Again, the Supreme Court says: 

“The obligation of a contract includes everything within 
its obligatory scope. Among these elements nothing is 
more important than the means of enforcement. This is 
the breath of its vital existence. Without it the contract, 
as such, in the view of the law ceases to be and falls into 
the class of those ‘imperfect obligations’, as they are 
termed, which depend for their fulfillment upon the will 
and conscience of those upon whom they rest. The ideas 
of right and remedy are inseparable. Want of right and 
want of remedy are the same thing.” 

A very clear definition of the term “obligation of con¬ 
tracts” is found in the opinion of Judge Van Devanter in 
Lamb v. Powder River Live Stock Co ., 9 in which he said: 

“The obligation of a contract consists in the binding 
force of its stipulations upon those who make them, and 
depends upon the continued existence of the means of en¬ 
forcing its stipulations; otherwise a contract would be 
without obligation, and would have only such effect as a 
party should choose to give it.” 

It is difficult to understand why the Constitution pro¬ 
hibits a State impairing a contract, but does not prohibit 
Congress from doing so, for the prohibition does not apply 
to that body. 

What Amounts to an Obligation of a Contract. To impair, 


0 132 Fed. Uep. 439. 




82 


CONSTITUTION OF THE UNITED STATES 


means to weaken, to take away strength. Therefore, to 
impair the obligation of a contract is to change or weaken 
its terms or effect. A law which changes the terms of a 
contract by making new conditions, or dispenses with those 
expressed, impairs its obligation. The prohibition applies 
to the fact of impairment, not to its extent; so if there has 
been any impairment, however small, the Constitution is 
violated. It has been held that anything which diminishes 
the efficiency of a contract or retards its enforcement 
amounts to an impairment of its obligation. So, any act 
which abridges a remedy for the enforcement of a contract 
which previously existed and which fails to furnish any 
remedy, is an impairment. Judge Mills, 10 in considering 
the word “impair” in reference to this clause, stated: 

“It is remarkable that the Convention did not use the 
term ‘lessen’, or ‘increase’, or ‘destroy’, but one more com¬ 
prehensive, which prohibited the States, even without alter¬ 
ing, lessening, or increasing, from making worse, in any 
respect, a contract legitimate in its creation.” 

So it has been held that “the objection to a law, on the 
ground of its impairing the obligation of a contract can 
never depend upon the extent of the change which the law 
effects in it. Any deviation from its terms, by postponing 
or accelerating the period of performance which it pre¬ 
scribes, imposing conditions not expressed in the contract, 
or dispensing with the performance of those which are, 
however minute or apparently immaterial, in their effect 
upon the contract of the parties, impairs its obligation.” 11 

So, a contract may be impaired by changing the statute 
of limitations, or passing exemption or redemption statutes. 

What Is a Law within This Clause? It is a “law” im¬ 
pairing the obligation of contracts which a State is pro¬ 
hibited from passing. It is desirable, therefore, to know 
what is a “law” within the meaning of this clause. Mr. 
Justice Miller says: 

“It is a statute of a State which is forbidden or some¬ 
thing equivalent to such statute, possessing the same dig- 

lo 4th Littell 09. 11 8 Wheat. 84. 


CONSTITUTION OF THE UNITED STATES 83 

nity and character and passed or enacted by the authority 
of a State.” 

A Constitution may be a law within the meaning of this 
clause. So may an ordinance of a city. The law does not 
need to be in the form of a constitutional or statutory 
enactment, if the State treats it as a law . 12 The word 
“contract’’ as used in this clause deserves consideration. 
Mr. Justice Miller in considering it said: 

“To many who have considered this clause, it has seemed 
probable that it was not designed by the framers of the 
Constitution to do anything more than protect private con¬ 
tracts, those between individuals and those between indi¬ 
viduals and private corporations, that is, not municipal 
corporations, but those organized for purposes of profit; 
and if it were now an original question, it is by no means 
certain, but that this would be a sound view of it; but 
those eminent men who, at an early date, had the duty of 
defining the meaning of this provision, thought otherwise. 
They held it to apply very largely to contracts made by a 
State, and not only to those made by it, but to contracts 
arising out of State statutes and legislation. ’ 9 

In the early case of Butler v. Pennsylvania , 13 Mr. Justice 
Daniel in considering this word said: 

“The contracts designed to be protected by the Tenth 
Section of the First Article of the Constitution, are con¬ 
tracts by which perfect rights, certain, definite, and fixed, 
private rights of property are vested.” 

In Louisiana v. Mayor of New Orleans 14 it was said: 

“The term i contract* is used in the Constitution in its 
ordinary sense, as signifying the agreement of two or more 
minds for considerations proceeding from one to the other, 
to do, or not to do, certain acts. Mutual assent to its terms 
is of its very essence.” 

There is, therefore, no anxiety as to what the term con¬ 
tract means as used in the “impairment clause” of the 
Constitution. It is used there just as it is used anywhere, 

12 Williams v. Bruffy, 96 U. S. 176. 14 Supra, footnote 8. 

is 10 How. (U. S.) 402. 


84 


CONSTITUTION OF THE UNITED STATES 


and it is tlie obligation of a contract which cannot be 
impaired. 

§ 55. Titles of Nobility. The last prohibition npon the 
States in this clause is that no State shall grant titles of 
nobility. By a preceding clause of the Constitution this 
same prohibition was extended to Congress. It would have 
been curious, if the Constitution had prevented Congress 
from granting titles of nobility, and not extended the pro¬ 
vision to the States. 

PROHIBITIONS, EXCEPT WITH CONSENT OF CONGRESS 

The Constitution says: 

4 ‘No State shall, without the Consent of Congress, lay 
any Imposts or Duties on Imports or Exports except what 
may be absolutely necessary for the execution of its In¬ 
spection Laws; and the net Produce of all Duties and Im¬ 
posts laid by any State on Imports and Expo?Ts shall be 
for the Use of the Treasury of the United States; and all 
such Laws shall be subjected to the Revision and Control 
of Congress.’’ 

This and the succeeding clause of this section, contains 
an enumeration of powers which the States are prohibited 
from exercising except with the consent of Congress. 

§ 56. Imports or Duties. Mr. Madison said of the first 
portion of this clause: 

“It was intended merely to provide for expenses in¬ 
curred by particular States in their inspection laws, and 
in such improvements as they might choose to make in 
their harbors and rivers, with the sanction of Congress.” 

The Sixth Article of the Articles of Confederation im¬ 
posed certain restrictions upon the States which were 
similar to those contained in this clause. The words “im¬ 
posts” and “duties” as here used are synonymous terms 
and signify in common understanding, the price paid by 
an importer for bringing an article into the country. 

The terms “imports” and “exports” are compound 
words, composed of the prefix im (in) and porto (to carry), 
and ex (out) and porto (to carry) and have opposite mean- 


CONSTITUTION OF THE UNITED STATES 


85 


mgs. “Imports” are articles carried into a country and 
“exports” are those carried out of a country. In Pitts¬ 
burg Coal Company v. Louisiana. 15 the Supreme Court 
says: 

The terms ‘imports’ and ‘exports’ apply only to articles 

imported from foreign countries or exported to them.” 

I || # 

The word “import” does not apply to articles carried or 
taken from one State to another, but to articles brought 
from a foreign country to the United States. These terms 
are limited in their application to property and do not apply 
to persons. Said Mr. Justice Miller: 

“Neither at the time of the formation of the Constitu¬ 
tion nor since, has any inspection law included anything 
but personal property as the subject of its operation. Nor 
has it ever been held that the words ‘imports’ and ‘exports’ 
are used in that instrument as applicable to free human 
beings, by any competent judicial authority. We know of 
nothing which can be imported from one country or ex¬ 
ported into another that is not in some sense property, 
property in regard to which some one is owner, and is 
either importer or exporter. This can not apply to a free 
man. Of him it is never said he imports himself, or his 
wife, or his children.” 

Neither do the words apply to a corpse. The remains of 
deceased persons are not exports within the meaning of this 
clause. ‘ ‘ There is ’ ’, says the Supreme Court, ‘ ‘ no property 
in a just sense in the dead body of a human being. ’ ’ 

Inspection Laivs. The States passed inspection laws 
before the formation of the Union, and when the Consti¬ 
tution was framed, the term “inspection laws” was used 
in reference to the understanding of them at that time. 
In Turner v. Maryland, 16 Justice Blatchford said of this 
term: 

“In view of the legislation existing at the time the Con¬ 
stitution of the United States was adopted and ratified by 
the original States, known to the framers of the Consti¬ 
tution who came from the various States, and called “in- 

1C 107 U. S. 52. 


is 156 U. S. 600, 






CONSTITUTION OF THE UNITED STATES 


86 

spection laws’ in those States, it follows, that the Consti¬ 
tution, in speaking of ‘inspection laws’ included such laws, 
and intended to reserve to the States the power of contin¬ 
uing to pass such laws, even though to carry them out and 
make them effective, in preventing the exportation from 
the State of the various commodities, unless the provisions 
of the laws were observed, it became necessary to impose 
charges which amounted to duties or imposts on exports 
to an extent absolutely necessary to execute such laws. 
The general sense in which the power of the States in this 
respect has been understood since the adoption of the Con¬ 
stitution is shown by the legislation of the States since 
that time, and covering the form, capacity, dimensions, and 
weight of packages containing articles grown or produced 
in a State, and intended for exportation. It is a circum¬ 
stance of weight that the laws referred to in the Consti¬ 
tution are by it made ‘subject to the revision and control 
of Congress’. Congress may, therefore, interpose, if at 
any time any statute, under the guise of an inspection law, 
goes beyond the limit prescribed by the Constitution, in 
imposing duties or imposts on imports or exports.” 

It was held that the words in this clause “except what 
may be absolutely necessary for executing its inspection 
laws” are not violated by a State inspection law which 
applies to goods shipped only from one State to another. 

Duties Paid into United States Treasury. The provision 
that “the net produce of all duties and imposts, laid by any 
State on imports and exports, shall be for the use of the 
Treasury of the United States,” means that such duties 
and imposts shall be paid into the treasury of the United 
States and then become subject to the appropriation laws of 
Congress. 

§ 57. Duties of Tonnage, Etc. The concluding clause of 
the prohibitions against the States is as follows: 

“No State shall, without the consent of Congress, lay 
any duty of tonnage; keep troops or ships of war in time 
of peace; enter into any agreement or compact with another 
State, or with a foreign power; or engage in war, unless 
actually invaded, or in such imminent danger as will not 
admit of delay.” 


CONSTITUTION OF THE UNITED STATES 


87 


It will be observed that this clause prohibits the States 
from doing four things, unless the consent of Congress is 
obtained: First, to lay any duty of tonnage; second, keep 
troops or ships of war in time of peace; third, enter 
into any agreement or compact with another State, or with 
a foreign power; fourth, engage in war, except in case of 
invasion, or such danger as will not admit of delay. While 
none of these powers can be exercised by a State without 
the consent of Congress, they may be so exercised if Con¬ 
gress consents. The Constitution has made no provision 
as to how the consent of Congress shall be signified or 
made manifest. The whole subject has been relegated to 
Congress to be decided by that body according to the rules 
of law, and correct reason. In Virginia v. West Virginia, 17 
the Supreme Court said: 

“The consent which the Constitution requires as to valid 
agreements under this clause between States is not neces¬ 
sarily to be an expressed consent, but may be inferred 
from circumstances.” 

In a later case, that of Virginia v. Tennessee, 18 it was 
held by the Court: 

“The Constitution does not state when the consent of 
Congress shall be given; whether it shall precede or may 
follow the compact made, or whether it shall be express 
or implied. In many cases the consent will usually pre¬ 
cede the compact or agreement, as where it is to lay a 
duty of tonnage, keep troops or ships of war in time of 
peace, or to engage in war. But when the agreement related 
to a matter which could not be considered until its nature 
is fully developed, it is not perceived why the consent may 
not be subsequently given.” 

The word tonnage signifies the capacity of a vessel 
expressed in tonnage of one hundred cubical feet each, as 
ascertained by the rules of admeasurement and compu¬ 
tation. It was held in Inman Steamship Co. v. Tinker : 19 

“Tonnage in our law, is a vessel’s ‘internal cubical ca- 

17 11 Wall. 39. is 94 U. S. 238. 

is 148 U. S. 503. 


88 


CONSTITUTION OF THE UNITED STATES 


pacity in tons of one hundred cubic feet each’, to be ascer¬ 
tained in the manner prescribed by Congress. Tonnage 
duties are duties upon vessels, in proportion to their 
capacity . 9 9 

A duty of tonnage under this clause is a charge upon a 
vessel according to its tonnage as an instrument of com¬ 
merce, for entering, or leaving a port, or navigating the 
public waters of the country. The prohibition was intended 
to prevent the States from laying burdens of this kind 
against commerce carried on by vessels. 

§ 58. Troops and Ships of War in Time of Peace. The 
prohibition also extends to States keeping warships or 
troops in time of peace. 

The Constitution in a preceding section authorizes Con¬ 
gress to regulate the militia. If each individual State could 
also exercise such power, there might arise conflicts be¬ 
tween the States, or between a State and the General 
Government, or between a State and a foreign Government. 
It was for this reason that the Constitution prohibits the 
States from exercising such powers generally, but at such 
times as might arise where it would be necessary for a 
State to keep troops, it may do so with the consent of Con¬ 
gress. 

National Guard. The practical utility of this clause has 
been greatly effected by the organization and maintenance 
of the State Militia or National Guard. In State ex rel v. 
Wagner, 20 the Supreme Court of Minnesota held: 

“The active militia or national guard is organized and 
enrolled for discipline, and not for military service, except 
in times of insurrection, invasion, and riot. The men com¬ 
prising it come from the body of the militia of the State, 
and, when not engaged at stated periods in drilling, or 
training for military duty, they return to their usual vaca¬ 
tions, subject to call when public exigencies require it, but 
may not be kept in service, like standing armies in time 
of peace. While enrolled as soldiers of the State, they 
are neither troops within the meaning of Section 10, Arti¬ 
cle 1, of the Federal Constitution, nor a 4 standing army’ 

20 23 Minn. 544. 


CONSTITUTION OF THE UNITED STATES 


80 


within the meaning of Section 14 of the Bill of Rights in 
the State Constitutions.” 

§59. Agreement and Compact. The clause also pro¬ 
hibits a State from entering into any Agreement or Com¬ 
pact with another State or foreign Power. 

The words “agreement” and “compact” in this clause 
have a different signification from the word “treaty”. Mr. 
Chief Justice Taney, in Holmes v. Jennison, 21 said: 

“The words ‘ agreement ’ or ‘ compact * could not have 
been idly or superfluously used by the framers of the Con¬ 
stitution, and cannot be said to mean the same thing as 
the word ‘treaty’. They evidently mean something more, 
and were designed to make the prohibition more compre¬ 
hensive.” 

In Virginia v. Tennessee, 22 the Supreme Court held: 

“Looking at the clause in which the terms ‘compact’ or 
‘agreement’ appear, it is evident that the prohibition is 
directed to the formation of any combination tending to 
the increase of political power in the States, which may 
encroach upon or interfere with the just supremacy of the 
United States. . . . Compacts or agreements—and we 
do not perceive any difference in the meaning, except that 
the word ‘compact’ is generally used with reference to 
more formal and serious engagements than is usually 
implied in the term ‘agreement’—cover all stipulations 
affecting the conduct or claims of the parties.” 

§ 60. War in Cases of Actual Invasion. The final pro¬ 
hibition against the exercise of legislative power by the 
States without the consent of Congress is that they shall 
not engage in war unless actually invaded or in such immi¬ 
nent danger as will not admit of delay. This prohibition 
has a very ancient precedent. The New England Union, 
established in 1643, contained a provision that neither 
Massachusetts, Plymouth, Connecticut, or New Haven, 
should engage in any war without the consent or agree¬ 
ment of the commissioners. Benjamin Franklin’s plan of 
a Confederation between the Colonies also provided that 

2114 Pet. (U. S.) 540. 22 148 U. S. 503. 


00 


CONSTITUTION OF THE UNITED STATES 


no colony should engage in any offensive war with the 
Indians, unless the consent of the Congress or Grand Coun¬ 
cil was obtained. The prohibition is also found in the 
Articles of Confederation, which prohibits any State en¬ 
gaging in war without the consent of the United States, 
except in case of actual invasion by enemies. Its insertion 
into the Constitution of the United States was, therefore, 
justified by ample precedent. To have permitted a State 
to engage in war would have endangered the safety of the 
public. Congress, therefore, wisely reserved that power 
to the General Government unless in such extreme exigen¬ 
cies that immediate action was required. 


/ 


CHAPTER V 


THE PRESIDENT 

§ 61. Establishment of the Office. There was no execu¬ 
tive department of the Government under the Articles of 
Confederation and consequently no President. When the 
Constitutional Convention met there was no opposition in 
that body to the establishment of the executive department. 
Serious divisions of opinion, however, existed concerning 
the duration of the executive term and the number of 
Executives there should be. Some members of the Con¬ 
vention desired there should be a plurality of Executives, 
and some that there should be three Executives at the same 
time. 

Mr. Wilson finally moved that the executive should con¬ 
sist of a single person and this was carried. The term was 
afterwards fixed at four years, though some members in 
the Convention desired the term to be much longer, and the 
Convention twice fixed it at seven years, but a four years’ 
term was without serious objection finally agreed upon. 
There was much opposition also to the reelection of the 
President, but there was no provision on that subject 
inserted in the Constitution. 

§ 62. Election. The President is elected by the Electoral 
College, and members of the Electoral College are elected 
by the States in such manner as the legislatures thereof 
may direct. The usual way is for the Electors to be elected 
by the people at large, and not by districts, the same as 
Congressmen are chosen. The Electors of each State meet 
and cast the vote of their State for President and Vice 
President, and this is transmitted to the President of the 
Senate. Each State is entitled to as many Electors as it 
has Senators and Representatives. No person who is a 

91 


92 


CONSTITUTION OF THE UNITED STATES 


Senator or Representative, or who holds an office of trust 
or profit under the United States can be an Elector. 

The manner of electing the President and Vice President 
is now determined bv the Twelfth Amendment. The time 
of choosing Electors and the day on which they shall cast 
their votes is determined by Congress. 

§ 63. Qualifications. The President must be a natural 
born citizen of the United States who has attained the 
age of thirty-five years and has been fourteen years a 
resident within the United States. 

If the President should be removed from office, or should 
die or resign, or become unable to discharge the powers 
and duties of the office, the same would devolve upon the 
Vice President. Concerning the order of succession the 
statute now provides that: 

“In case of removal, death, resignation, or inability of 
both the President and Vice President, the Secretary of 
State, or Secretary of War, or Attorney General, or Post¬ 
master General, or Secretary of the Navy, or Secretary 
of the Interior, in the order named shall act as President 
until the disability is removed, or a President is elected.” 

Of course none of these officers could succeed to the posi¬ 
tion of President unless he possessed the required qualifi¬ 
cations. 

§ 64. Compensation and Oath of Office. The compensa¬ 
tion of the President is determined by Congress, and can 
neither be increased nor decreased during the term for 
which he shall have been elected. The President during 
his term cannot receive any emolument from the United 
States, or from any single State, in addition to his com¬ 
pensation. Before he enters upon the duties of his office, 
the President shall take the following oath or affirmation: 

“I do solemnly swear (or affirm) that I will faithfully 
execute the office of President of the United States, and, 
will, to the best of my ability, preserve, protect, and defend 
the Constitution of the United States.” 

§ 65. Powers. President , Commander-in-Chief of Army 
and Navy. The President is Commander in Chief of the 


CONSTITUTION OF THE UNITED STATES 93 

Army and Navy of the United States, and of the militia 
in the several States, when it is called into the active service 
of the United States. This provision would probably 
authorize the President even in time of war to take actual 
command of the Army and Navy. It is somewhat difficult 
to understand why the framers of the Constitution con¬ 
ferred this remarkable power upon the President, who 
probably would be -wholly inexperienced in military and 
naval affairs. No President has ever exercised such author¬ 
ity, but leaves the actual command of the Army and Navy 
to men educated and drilled in military and naval warfare, 
whom he has appointed to those responsible positions. 

Opinions in Writing. The President may require in 
writing the opinion of the principal officer in each of the 
executive departments of the Government, upon any sub¬ 
ject relating to the duties of their respective offices, and 
he shall also have power to grant reprieves and pardons 
for offenses committed against the United States, except in 
cases of impeachment. 

It was not contemplated by the framers of the Consti¬ 
tution that the President should consult his principal execu¬ 
tive officers collectively, or in a body such as is now under¬ 
stood by cabinet meetings, in matters pertaining to National 
affairs, but only that he might, if he so chose, require the 
opinion in writing from each of them on any subject relat¬ 
ing to the particular duties of their respective positions. 
Cabinet meetings were not contemplated, and the word 
“cabinet” is not found in the Constitution. It was not 
Washington’s practice to call a meeting of his advisors 
for the first two or three years after his inauguration as 
President, but he took their advice singly. Afterwards, 
however, he formed the custom of calling them together, 
and getting the views of each in the presence of the others 
and in his own presence, and this is the origin of what is 
commonly understood as cabinet meetings. 

Pardons and Reprieves. The power to grant pardons 
and reprieves is also conferred upon the President. The 
power to grant a pardon by the President applies to every 


94 


CONSTITUTION OF THE UNITED STATES 


offense which can he committed against the Government, 
except that of impeachment. The pardon restores the 
offender to his rights of citizenship. The limitations against 
the power of the President to pardon are two: First, he 
can only pardon for offenses committed against the United 
States; and second, he can not pardon an officer who has 
been impeached. A pardon has been defined to he “ An act 
of grace by which an offender is released from the conse¬ 
quences of his offense.” It releases the offender and re¬ 
stores him to all civil rights, but it does not make amends 
for the past. It affords no relief for what has been suffered 
by his imprisonment, forced labor or otherwise; nor does 
it give compensation for what has been done or suffered, 
nor impose upon the Government any obligation to give it . 1 

To Make Treaties. The President also has the power— 
with the advice and consent of the Senate—to make treaties, 
but two-thirds of the Senators present must concur in such 
treaties. He can also nominate, and by, and with the con¬ 
sent of the Senate, appoint Ambassadors and other Public 
Ministers and Consuls, Judges of the Supreme Court, and 
all other officers of the United States, whose appointments 
are not otherwise provided for, and which shall be estab¬ 
lished by law; but Congress can by law vest the appoint¬ 
ment of such inferior officers as they may think proper in 
the President alone, in the courts of law, or in the heads 
of departments. 

The power to make treaties and appoint to office, is one 
of the greatest which the President exercises. A treaty 
is usually regarded as a contract entered into between inde¬ 
pendent nations with a view to their public welfare. The 
right to make a treaty is perhaps an inherent prerogative 
of a sovereign, but such power is expressly conferred upon 
the President of the United States by the Constitution, 
with the advice and consent of two-thirds of the Senators 
who may be present. Mr. Justice Clifford said: 

“The framers of the Constitution intended that the power 
should extend to all those objects which in the intercourse 

i Knote v. United States, 95 TJ. s. 149-153. 



CONSTITUTION OF THE UNITED STATES 


95 


of nations had usually been regarded as the proper sub¬ 
jects of negotiation and treaty, if not inconsistent with 
the nature of our Government and the relations between the 
States and the United States . 2 This power would justify 
the United States in making treaties with the Indian 
tribes.” 

The power to make treaties is conferred upon the Presi¬ 
dent in general and not in specific terms, nor does the 
Constitution descend to details in regard to the matter. 

Appointment. The President nominates and appoints 
Ambassadors, Public Ministers, Judges, and other officers, 
but such appointments must be ratified by the Senate. 
That is, the Senate must consent to the appointment. 

Those officers who are appointed by the President are the 
higher class or grade, such as Judges of the Federal Courts, 
Ambassadors, and Foreign Representatives. There is a 
smaller or second class of officers, and appointment of 
these may be vested by Congress in the President alone, or 
in the courts, or in the heads of the departments, and their 
appointment need not be ratified by the Senate. 

Filling Vacancies. The President also has the power to 
fill all vacancies that may happen during the recess of the 
Senate. This is done by granting commissions which shall 
expire at the end of the next session. 

Messages to Congress. One of the important powers 
conferred upon the President is that which requires him to 
give information to Congress of the state of the Union from 
time to time, and recommend to their consideration such 
measures as he shall judge necessary and expedient. This 
is the origin of the custom of sending messages to Con¬ 
gress. Presidents Washington and John Adams were 
accustomed to address Congress orally upon matters relat¬ 
ing to public policy, but Mr. Jefferson, not being a fluent 
speaker, established the custom of sending written mes¬ 
sages to Congress, and that method has been followed 
since. The expression “state of the Union” used in the 
Constitution means the United States as long as it endures, 

2 Holden v. Joy, 17 Wall. 243. 


96 


CONSTITUTION OF THE UNITED STATES 


and not the country which was formed into the United 
States at the adoption of the Constitution. 

Miscellaneous Powers. The President is also required 
to convene Congress on extraordinary occasions, and to 
receive Ambassadors and other public ministers, and to 
take care that the law shall be faithfully executed, and also 
to issue commissions to all officers of the United States. 

Receiving Ambassadors and Ministers is one of the diplo¬ 
matic functions which the President performs. Ambassa¬ 
dors and Ministers representing the United States abroad 
are received by the heads of those countries, and in turn 
the President of the United States receives the Ambassa¬ 
dors and Ministers of foreign countries sent here to repre¬ 
sent them. The President may decline to receive an 
Ambassador or other Public Minister who is not agreeable 
to him, and so may the heads of foreign Governments, 
and each may dismiss a representative at his pleasure. 
The duty imposed upon the President to see that the laws 
are faithfully executed is one of great importance. It is 
the laws which the President must see are faithfully exe¬ 
cuted. This is not limited to the mere enforcement of the 
laws of Congress or the Territories of the United States 
but also includes the rights, duties, and obligations which 
grow out of the Constitution as well as our international 
relations, and all the protection implied by the nature of 
the Government under the Constitution, and even extends 
to the protection of the members of the Federal Judiciary. 

It was held In re Neagle 3 that the President can take such 
measures as he thinks proper for the protection of a judge 
of the courts of the United States while in the discharge 
of his official duties who is threatened with personal assault 
which might prove fatal, and he can also protect the mail 
and those guarding it, and place guards upon the property 
of the Government to protect it. 4 

§ 66. Impeachment of President. The President, as well 
as the Vice President, and all civil officers of the United 
States, can be removed from office on impeachment for 

s 135 U. S. 64, 65-67. 4 in re Debs, 158 U. S. 564. 


CONSTITUTION OF THE UNITED STATES 


97 


conviction of treason, bribery, or other high crimes, and 
misdemeanor. There has been but one President of the 
United States impeached, and that was Andrew Johnson, 
who on his trial on the articles of impeachment was 
acquitted by one vote. 


CHAPTER VI 


THE JUDICIARY 

§ 67. Supreme Court. The Constitution vests the judi¬ 
cial power of the United States in a Supreme Court, and in 
such inferior courts as Congress may establish from time 
to time. There was almost unanimous opinion in the Con¬ 
vention which framed the Constitution that there should 
be a Supreme Court of the United States, which should be 
a co-ordinate branch of the Government. This Court was 
created in pursuance of the provision of the Constitution 
and, therefore, Congress cannot abolish it. It may deter¬ 
mine the number of members of the Court, but it cannot 
abolish the Court itself. The Court was originally created 
and its jurisdiction determined by the Act of Congress 
passed September 24, 1789. Under that Act the Court 
consisted of a Chief Justice and five Associate Justices. 
The act prescribed the oath which the Justices shall take, 
and which is still the oath taken by the members, and is as 
follows: 

“I . do solemnly swear (or affirm) that I 

will administer justice without respect to persons, and do 
equal right to the poor and to the rich, and that I will 
faithfully and impartially discharge and perform all the 
duties incumbent on me according to the best of my abili¬ 
ties and understanding, agreeably to the Constitution and 
laws of the United States; so help me God.” 

§ 68. Circuit and District Courts. The circuit and dis¬ 
trict courts of the United States were also created by the 
Act of Congress of the above date. The Act created three 
circuits, and provided that in each circuit there should be 
held a circuit court which should consist of two Judges of 
the Supreme Court and a district judge. 

§ 69. Tenure of Office of United States Judges. The 


98 



CONSTITUTION OF THE UNITED STATES 90 

tenure ol office of United States Judges depends upon good 
behavior, which ordinarily means for life. At the time the 
Constitution was adopted, the Constitution of two States, 
Massachusetts and New Hampshire, had similar provisions. 
There was no opposition in the Convention to the tenure 
of Judges. 

§ 70. Compensation. The compensation of the Judges 
of the Supreme or Inferior courts of the United States 
can not be diminished, during their term of office, but it 
may be increased. The provision originally read that their 
compensation should neither be diminished nor increased 
during their term of office, but on motion of Mr. Gouverneur 
Morris, the words, “or increased” were stricken out, 
although there was considerable opposition to this. 

Speaking on this subject in the Virginia Convention in 
1820, John Marshall said: 

“The judicial department comes home in its effects to 
every man’s fireside; it passes on his property, his reputa¬ 
tion, his life, his all. Is it not to the last degree important 
that he should be rendered perfectly and completely inde¬ 
pendent, with nothing to control him but God and his con¬ 
science? I have always thought from my earliest youth 
till now, that the greatest scourge an angry Heaven ever 
inflicted upon an ungrateful and sinning people was an 
ignorant, a corrupt, or a dependent judiciary.” 

§ 71. Jurisdiction of Federal Courts. By the terms of 
the Constitution: 

“Judicial power extends to all cases, in law and equity, 
arising under the Constitution, the laws of the United 
States, and treaties made, or which shall be made, under 
their authority; to all cases affecting Ambassadors, other 
Public Ministers, and Consuls; to all cases of ^ . 

and maritime jurisdiction; to controversies to which the 
United States shall be a party; to controversies between two 
or more States; between a State and the citizens of another 
State; between citizens of different States; between citi¬ 
zens of the same State claiming lands under grants of 
different States, and between a State or the citizens thereof, 
and foreign States, citizens, or subjects.” 1 

i Art. Ill, § 2 of Constitution, 


100 CONSTITUTION of the united states 

Judicial power, is the power to hear and determine a 
cause. As Justice Miller said: 

“It is the power of a court to decide and pronounce a 
judgment, and carry it into effect between persons and 
parties who bring a case before it for decision.’’ 2 

A case within the meaning of this provision of the 
Constitution, it has been said, “is a controversy between 
parties which has taken shape for judicial decision.” 3 

Extent of Judicial Power. The provision that the judi¬ 
cial power shall extend to all cases in law or equity includes 
criminal cases, for they are equally within the domain of 
the judicial power of the United States. It was held in 
Tennessee v. Davis, 4 that a case arises whenever its decision 
depends upon the construction of the Constitution. In the 
early case of Chisholm v. Georgia, 5 Chief Justice Jay said: 

“The judicial power of the United States extends to five 
descriptions of cases: First, to all cases arising under this 
Constitution; because the meaning, construction, and opera¬ 
tion of a compact ought always to be ascertained by all the 
parties, or by authority derived only from one of them. 
Second, to all cases arising under the laws of the United 
States; because as such laws, constitutionally made, are 
obligatory on each State, the measure of obligation and 
obedience ought not to be decided and fixed by the party 
from whom they are due, but by a tribunal deriving author¬ 
ity from both the parties. Third, to all cases arising under 
treaties by their authority; because as treaties are compacts 
made by, and obligatory on the whole Nation, their opera¬ 
tion ought not to be affected, or regulated by the local laws 
or courts of a part of the Nation. Fourth, to all cases affect¬ 
ing Ambassadors, or other Public Ministers, and Consuls; 
because, as these are officers of foreign nations, whom this 
nation are bound to protect and treat according to the laws 
of nations, cases affecting them ought only to be cognizable 
by National authority. Fifth, to all cases of admiralty and 
maritime jurisdiction; because, as the seas are the joint 
property of nations, whose right and privileges relative 
thereto are regulated by the law of nations and treaties, 
such cases necessarily belong to National Jurisdiction.” 

2 Miller, The Constitution, 314. * 100 U. S. 257-264. 

s Paschal, The Constitution, 197, note 204. 5 2 Dallas 475. 


101 


CONSTITUTION OF THE UNITED STATES 

In the same case, the Chief Justice further said: 

“The jurisdiction of the United States also extends to the 
following controversies: First, to controversies to which 
the United States shall he a party; because in cases in which 
the whole people are interested, it would not he equal or 
wise to let any one State decide and measure out the justice 
due to others. Second, to controversies between two or more 
States; because domestic tranquility requires that the con¬ 
tentions of States should be peaceably terminated by a 
common judicatory; and, because, in a free country justice 
ought not to depend on the will of either of the litigants. 
Third, to controversies between a State and citizens of 
another State; because, in case a State (that is all the 
citizens of it) has demands against some citizens of another 
State, it is better that she should prosecute their demands 
in a National Court than in a court of the State to which 
those citizens belong; the danger of irritation and crimina¬ 
tions arising from apprehensions and suspicions of par¬ 
tiality being thereby obviated, and because in cases where 
some citizens of one State have demands against all the 
citizens of another State, the cause of liberty and the rights 
of men forbid that the latter should be the sole judges of 
the justice due to the latter; and true republican govern¬ 
ment requires that free and equal citizens should have free, 
fair, and equal justice. Fourth , to controversies between 
citizens of the same State, claiming lands under grants of 
different States; because, as the rights of the two States 
to grant the land are drawn into question, neither of the 
two States ought to decide the controversy. Fifth, to contro¬ 
versies between a State, or the citizens thereof, and foreign 
States, citizens or subjects, because, as every Nation is 
responsible for the conduct of its citizens towards other 
Nations, all questions touching the justice due to foreign 
Nations or people, ought to be ascertained by, and depend 
on, National Authority.” 

Trial of Crimes. The Constitution provides: 

“All crimes, except in cases of impeachment, shall be 
by jury; and such trial shall be heard in the State where the 
said crime shall have been committed; but when not 
committed within any State, trial shall be at such places as 
Congress may by law have directed.” 

The word “trial” as used in the Constitution means a 


102 


CONSTITUTION OF THE UNITED STATES 


trial under the provisions of the common law of England 
at the time the Constitution was adopted, and an examina¬ 
tion according to law of the facts in the issues of the case 
before a duly constituted tribunal. This provision does not 
apply to trials in the State courts, nor to a trial by a mili¬ 
tary commission, nor to a proceeding in contempt, but is 
limited to trials in the Federal Courts throughout the 
United States, which includes the District of Columbia and 
the Territories. 6 In substance Mr. Justice Harlan said, 
Kelley v. Milan, 7 the word “crime” embraces every viola¬ 
tion of the public law, but in its narrower sense only 
includes offenses of a serious or atrocious character, and is 
to be considered in the light of the principles which, at 
common law, determine whether the accused was entitled 
to a trial by jury, and is not to be construed as relating only 
to felonies, or to offenses, which are punished by imprison¬ 
ment in the penitentiary, but also includes some classes of 
misdemeanors, the punishment of which may involve the 
deprivation of the liberty of a citizen. 

The purpose of requiring the trial to be held in the State 
where the crime was committed was to secure for the ac¬ 
cused the right to be tried in that State. When a crime has 
been committed outside of a State, Congress fixes the place 
where the trial shall be held. Accordingly, the act of 1789, 
provided that: 

“Trial of crimes committed on the high seas, or in any 
other place out of the jurisdiction of any particular State, 
shall be in the district where the offender was apprehended, 
or into which he may first be brought.” 

Treason. There was no definition of treason either by 
the civil or the common law, but the Constitution says it 
shall “consist only in levying war against the United 
States, or in adhering to their enemies, giving them aid 
and comfort.” 

Treason is the only crime which the Constitution defines, 
and Congress can not enlarge or lessen this definition, al- 

e Callan v. Wilson, 127 U. S. 540, 550. 

7 127 U. S. 149. 


CONSTITUTION OF THE UNITED STATES 103 

though that body has given the following definition of the 
term: 

“Whoever, owing allegiance to the United States, levies 
war against them or adheres to their enemies, giving them 
aid and comfort within the United States or elsewhere, is 
guilty of treason.’’ 8 

In United States v. Greathouse, 0 Mr. Justice Field said: 

“To constitute a levying of war there must be an-assem¬ 
blage of persons in force, to overthrow the Government or 
to coerce its conduct. The words embrace not only those 
acts by which war is brought into existence, but also 
those acts by which war is prosecuted. They levy war who 
create or carry on war. The offense is complete, whether 
the force be directed to the entire overthrow of the Govern¬ 
ment throughout the country, or only in certain portions of 
the country, or to defeat the execution and compel the 
repeal of one of its public laws.” 

So it is said that the purchasing of vessels, guns, ^and 
ammunition, and the employment of men to manage the 
vessel, if done in furtherance of a common design to aid 
a rebellion against a government constitutes giving aid and 
comfort to the enemy though such enterprise should not be 
successful. 

In order to convict a person of treason there must be two 
witnesses to the same overt act, or a confession in open 
court. An act is overt when it is open. That is, one which 
shows or manifests a purpose to commit treason. “It de¬ 
pends”, said Judge Blatchford, “largely upon the facts 
and circumstances of each case.” It was held in United 
States v. Hodges, 10 that the delivery of prisoners would con¬ 
stitute such an act, but a mere consultation or conspir¬ 
acy to levy war, or mere words, whether oral, written or 
printed, however treasonable, criminal, or seditious they 
may be in themselves, would not constitute an overt act of 
treason. The term “open court” means in the presence of 
the court. A conviction for treason can not be had on a 

8 U. S. Compiled Stat., vol. 4, p. 1391. 

o 4 Sawyer 457-466. i° U. S. v. Hodges, 26 Fed. Cas. 332, 334. 


104 CONSTITUTION OF THE UNITED STATES 

confession of the person accused of that crime, unless it 
is made in the presence of the court. The Constitution con¬ 
fers upon Congress the power to declare the punishment of 
treason, but provides that no attainder of treason shall 
work corruption of blood or forfeiture, except during the 
life of the person attainted. The punishment which Com 
gress first provided for treason was death by hanging. 
That was under the act of April 30, 1790, and it continued 
to be the penalty until 1862, when it was changed by Con¬ 
gress upon the recommendation of President Lincoln. It 
is said that the President was so frequently required to sign 
the death warrant of persons convicted of treason, whom 
he believed to have been influenced to commit the crime, 
that he suggested to Congress a modification of the punish¬ 
ment. In any event in 1862, Congress provided that every 
person guilty of treason shall suffer death, or at the discre¬ 
tion of the court, shall be imprisoned at hard labor for not 
less than five years, and fined not less than $10,000. 


CHAPTER VII 


ADDITIONAL PROBLEMS OF THE STATES 

§ 72. Faith and Credit. The Fourth Article of the Con¬ 
stitution deals largely with the States. It begins with the 
provisions that 

“Full Faith and Credit shall be given in each State to the 
public Acts, Records, and judicial Proceedings of every 
other State. And the Congress may by general laws pre 
scribe the Manner in which such Acts, Records, and Pro¬ 
ceedings, shall be proved, and the Effect thereof.” 

There was ample precedent for the Convention which 
framed the Constitution to adopt this clause. The Second 
Colonial Congress had enacted a similar provision, which 
had practically been repeated in the Articles of Confedera¬ 
tion. The provision requires that full faith and credit shall 
be accorded to the public acts, records, and judicial pro¬ 
ceedings, of each State of the Union in every other State 
of the Union. The effect of this provision in the Constitu¬ 
tion was to establish a feeling of security among the citi¬ 
zens of each State, and to cause them to repose confidence 
in the judicial proceedings of other States. The language 
of this section applies as well to the legislative proceedings 
of the Territories as to those of the States. The language 
relates to the public acts of the State. This means the laws 
which the legislature of a State enacts. The records and 
judicial proceedings of a State mean the judicial judg¬ 
ments, decrees, etc. It has been held that 

“Records and judicial proceedings are such, and such 
only, as are duly rendered by a court of competent juris¬ 
diction against those who appear to defend or who are 
legally notified to appear.” 1 

i Aldrich v. Kinney, 4 Conn. 380, 386. 


.105 


IOC) 


CONSTITUTION OF THU UNITED STATES 


The Federal Courts will give the same faith and credit to 
the courts of each State which the courts of other States 
give. 2 But the State is not, under this provision, charged 
with knowledge of what the laws of another State are, for 
there is no judicial obligation or duty enjoined upon the 
courts of a State concerning the knowledge it shall have of 
the laws of another State. What the law of another State 
is must be proved as a fact. 3 Under this clause it is compe¬ 
tent for a trial court to inquire as to the jurisdiction of a 
court which rendered judgment concerning the subject 
matter of the suit, or into whatever facts were necessary 
to give jurisdiction to the original court. 

§ 73. Manner of Proof. The last clause of the section 
authorizes Congress to prescribe the manner in which the 
acts, records, and proceedings, of a State shall be proved, 
and the effect of such proof. In pursuance of the authority 
conferred by this provision, the second session of the first 
Congress provided: 

“That the acts of the legislatures of the several States 
shall be authenticated by having the seal of their respective 
States affixed thereto; that the records and judicial pro¬ 
ceedings of the courts of any State shall be proved or 
admitted in any other court within the United States, by 
the attestation of the clerk and the seal. of the court 
annexed, if there be a seal, together with the certificate of 
the judge, Chief Justice, or presiding magistrate, as the 
case may be, that the said attestation is in due form. And 
the said records and judicial proceedings authenticated as 
aforesaid, shall have such faith and credit given them in 
every court within the United States, as they have by law 
or usage in the courts of the State, from whence the said 
records are or shall be taken/ ’ 

In 1804, another act was passed by Congress which 
extended the provisions just quoted to the public acts, 
records, and judicial proceedings of the Territories and 
Countries subject to the jurisdiction of the United States. 
At a later period Congress enacted the following provision: 

2 Cooper v. Newell, 173 U. S. 555, 567. 
s C. & A. R. R. v. Wiggins Ferry Co., 119 U. S. 615, 622. 


107 


CONSTITUTION OF THE UNITED STATES 


''All records and.exemplifications of bonds wbicli may 
be kept in any pnblic office of any State or Territory, or 
of any Country subject to the jurisdiction of the United 
States appertaining to a court, shall be proved or admitted 
in any court or office in any other State or Territory, or 
in any such Country by the attestation of the keeper of said 
records or books, and the seal of his office annexed, if there 
be a seal, together with the certificate of the presiding 
justice of the court of the county, parish, or district, in 
which such office may be kept, or of the Governor, or Secre¬ 
tary of State, the Chancellor or Keeper of the Great Seal, 
of the State, or Territory, or Country, that the said attesta¬ 
tion's in due form, and by the proper officers. If the said 
certificate is given by the presiding justice of a court, it 
shall be further authenticated by the clerk or prothonotary 
of the said court, who shall certify, under his hand, and the 
seal of his office, that the said presiding justice is duly 
commissioned and qualified; or, if given by such Governor, 
Secretary, Chancellor, or Keeper of the Great Seal, it shall 
be under the Great Seal of the State, Territory, or Country 
aforesaid in which it is made. And the said records and 
exemplifications, so authenticated, shall have such faith 
and credit given to them in every court and office within the 
United States as they have by law or usage in the courts 
or offices of the State, Territory, or Country, as aforesaid, 
from which they are taken/’ 

§ 74. Privileges and Immunities. This article of the 
Constitution also provides: 

“The Citizens of each State shall be entitled to all Privi¬ 
leges and Immunities of Citizens in the several States/’ 

This is a very important clause. Its authorship is 
attributed to Charles Pinckney. This provision had its 
origin in the principles of the common law of England, 
although the exact time when it was recognized as a 
principle of law is not known with certainty. Few pro¬ 
visions of the Constitution have had such a beneficent effect 
upon the inhabitants of each State as this. It brought the 
people generally to see that the citizens of each State 
should have the same privileges and immunities of every 
other State which the inhabitants of that State enjoyed. 
The courts have hesitated to give an exact definition of 


108 


CONSTITUTION OF THE UNITED STATES 


the terms “privileges and immunities”, and Mr. Justice 
Curtis said: 

“It is safer and more in accordance with the duty of a 
judicial tribunal to leave its meaning to be determined, 
in each case, upon a view of the particular rights asserted 
and denied therein. ’ ’ 4 

And Mr. Justice Harlan, in Blake v. McClung, 5 said: 

“This court has never undertaken to give any exact or 
comprehensive definition of the words 4 privileges and 
immunities’ in Article 4 of the Constitution.” 

The word “privilege” signifies a peculiar advantage, 
exemption, or immunity. Immunity has been defined to 
be an exemption from service in an office, or performing 
duties which the law generally imposes on other citizens. 

It was said in Cole v. Cunningham: 6 

“The intention of Section 2, Article 4, was to confer on 
the citizens of the several States a general citizenship, and 
to communicate all the privileges and immunities which 
the citizens of the same State would be entitled to under 
the like circumstances.” 

Mr. Justice Harlan in Blake v. McClung, supra, in refer¬ 
ence to this provision used this language: 

“We must not be understood as saying that a citizen 
of one State is entitled to enjoy in another State every 
privilege that may be given in the latter to its own citizens. 
There are privileges that may be accorded by a State to 
its own people, in which citizens of other States may not 
participate except in conformity to such reasonable regu¬ 
lations as may be established by the State. For instance, 
a State cannot forbid citizens of other States from suing 
in its courts, that right being enjoyed by its own people; 
but it may require a non-resident, although a citizen of 
another State, to give bond for costs, although such bond 
be not required of a resident. Such a regulation of the 
internal affairs of a State cannot reasonably be character¬ 
ized as hostile to the fundamental rights of citizens of 
other States. So, a State may, by a rule uniform in its 

4 18 How. 593. 6 133 u. S. 113-114. 

5 172 U. S. 239-248. 


CONSTITUTION OF THE UNITED STATES 


109 


operation as to citizens of the several States, require resi¬ 
dence within its limits for a given time before a citizen 
of another State who becomes a resident thereof shall 
exercise the right of suffrage, or become eligible to office. 

It has never been supposed that regulations of that charac¬ 
ter materially interfered with the enjoyment by citizens of 
each State of the privileges and immunities secured by the / 
Constitution to citizens of the several States. The Con- / 
stitntion forbids only such legislation affecting citizens of I 
the respective States as will substantially or practically 
put a citizen of one State in a condition of alienage when he 
is within, or when he removes to another State, or when 
asserting in another State the rights that commonly apper¬ 
tain to those who are a part of the political community 
known as the People of the United States, by and for 
whom, the Government of the Union was ordained and 
established.” 

§75. Fugitives from Justice. The next clause of this 
article provides for the surrender of fugitives. 

“A Person charged in any State with Treason, Felony, 
or other Crime, who shall flee from Justice, and be found 
in another State, shall on Demand of the executive Author¬ 
ity of the State, from which he fled, be delivered up to be 
removed to the State having Jurisdiction of the Crime.” 

American history furnished ample authority for the 
insertion of this clause in the Constitution. The principle 
involved in it is fully incorporated in the Eighth Article 
of the New England Federation, passed in 1643. It was 
practically repeated in the resolves in the second Colonial 
Congress in 1777, and again in the Articles of Confederation. 

The Supreme Court of the United States 7 has held the 
word “charged,” as it appears in this clause, includes any 
proceeding which a State sees fit to adopt by which a 
formal accusation is made against an alleged criminal. 

§ 76. Fugitives from Service or Labor. The next sec¬ 
tion of this clause provides: 

“No Person held to Service or Labor in one State under 
the Laws thereof, and escaping into another, shall in Con¬ 
sequence of any Law or Regulation therein, be discharged 

7 137 U. S. 324-331. 


110 


CONSTITUTION OF THE UNITED STATES 


from such Service or Labor, but shall be delivered up on 
Claim of the Party to whom such Service or Labor may be 
due . 9 ’ 

This clause and the one which we have just considered 
is all there is in the Constitution pertaining to the subject 
of extradition. This clause was inserted in the Constitution 
for the purpose of securing to the owners of slaves the right 
to pursue them into other States and to take them when 
found therein. It is of little importance except as a matter 
of history, since slavery has been abolished. 

§ 77. Admission of New States. The Constitution 
provides: 

“New States may be admitted by the Congress into this 
Union; but no new State shall be formed or erected within 
the Jurisdiction of any other State; nor any State be 
formed by the Junction of two or more States, or parts of 
States, without the Consent of the Legislatures of the 
States concerned as well as of the Congress .’ 9 

The first clause of this section relates to the admission 
of new States into the Union. It is exceedingly brief, terse, 
and comprehensive. It leaves the whole subject of the 
admission of States into the Union to Congress, but Con¬ 
gress cannot admit into the Union a smaller geographical 
division than a State. 

New States—in the language of the Constitution—may 
be admitted into this Union; but Congress cannot compel 
the admission of a State into the Union. Such action must 
be voluntary on the part of the inhabitants desiring admis¬ 
sion, and their admission must be in strict conformance 
to the laws of Congress on the subject. There are two 
prohibitions contained in the section: First, that no new 
State shall be formed or erected within the jurisdiction of 
any other State; and second, no State shall be formed by 
the junction of two or more States or parts of States, with¬ 
out the consent of the Legislatures of the States concerned, 
as well as of Congress. 

Formation of a State. In reference to the formation 


CONSTITUTION OF THE UNITED STATES 


111 


of a new State by the union of two or more States, or parts 
thereof, it is not the consent of the governors of the States 
or of their officers, but of their legislatures which controls. 
There is no direction in the Constitution as to how a new 
State shall be admitted into the Union, and there has not 
always been uniformity on this subject, but the general rule 
is that when a Territory desires to be admitted into the 
Union it petitions Congress to that effect. Congress then 
usually passes an Act favorable to the admission of the 
Territory under which the people are authorized to form a 
Constitution. When the Constitution has been agreed upon 
by the people of a State, it is submitted to the President 
and to Congress. If Congress is satisfied that the proceed¬ 
ings have been regular and the provisions of the Constitu¬ 
tion are satisfactory, it then passes an Act by which the 
territory becomes a State of the Union. This Act may be 
approved or vetoed by the President. The Act passed at 
the special session of the Sixty-First Congress for the 
admission of Arizona and New Mexico was vetoed by 
President Taft because it provided for the recall of judges. 

There is no distinction or difference among the States in 
the contemplation of the Constitution. A new State is 
entitled fo the same recognition as an old one; and when 
once admitted stands on the same footing as the original 
Thirteen States. Even should a State after admission 
violate any condition imposed in the Act of Congress 
admitting it, its standing as a State would not be impaired, 
but each house of Congress could bar Senators and Repre¬ 
sentatives of such a State from membership. 

§ 78. Regulation of Territory. The second clause of Sec¬ 
tion 3 of this Article provides: 

“The Congress shall have Power to dispose of and make 
all needful Rules and Regulations respecting the Territory 
or other Property belonging to the United States; and 
nothing in this Constitution shall be so construed as to 
Prejudice any Claims of the United States, or of any 
particular State.” 

The authorship of this provision is ascribed to Mr. 


112 


CONSTITUTION OF THE UNITED STATES 


Gouverneur Morris. Air. Justice Brewer in Kansas v. 
Colorado, 8 said: 

“The full scope of this paragraph has never been 
definitely settled. Primarily, at least, it is a grant of power 
to the United States of control over its property. But it 
clearly does not grant tc Congress any legislative control 
over the States; and must, so far as they are concerned, be 
limited to authority over the property belonging to the 
United States within their limits.” 

§ 79. Acquisition of Territory. The power to acquire 
territory is one of the inherent rights of sovereignty. It 
may be acquired by treaty, purchase, or discovery. The 
most usual mode is by treaty. AVhen the United States has 
acquired territory, Congress has the power to make laws 
for its government, subject, however, to Constitutional 
restrictions. In Murphy v. Ramsey, 9 it was said by Mr. 
Justice Alatthews: 

“The people of the United States, as sovereign owners 
of the National Territories, have Supreme Power over them 
and their inhabitants. In the exercise of this sovereign 
dominion, they are represented by the Government of the 
United States, to whom all the powers of Government over 
that subject have been delegated, subject only to such 
restrictions as are expressed in the Constitution, or are 
necessarily implied in its terms, or in the purposes and 
objects of the power itself. . . . But in ordaining 
government for the Territories, and the people who inhabit 
them, all the discretion which belongs to legislative power 
is vested in Congress; and that extends beyond all contro¬ 
versy to determining by law, from time to time, the form 
of the local government in a particular Territory, and the 
qualification of those who shall administer it. It rests with 
Congress to say whether, in a given case, any of the people, 
residents in the Territory, shall participate in the election 
of its officers or the making of its laws; and it may, there¬ 
fore, take from them any right of suffrage it may previously 
have conferred, or at any time modify or abridge it as it 
may deem expedient.” 

Territorial Districts. Territory acquired by the United 
States is sometimes formed into a District by appropriate 

s 206 IJ. S. 89. o 114 U. S. 44. 


CONSTITUTION OF THE UNITED STATES 


113 


legislation instead of being formed into a Territory, as, 
for instance, the District of Alaska. The officers of such 
District, like those of a Territory, are appointed by the 
President, and Congress has the right to legislate for such 
District or Territory, and any law passed by a district or 
territorial legislature which conflicts with the law of Con¬ 
gress would be void. Subsequently such District or Terri¬ 
tory may be admitted as a State into the Union. At least 
two States—Vermont and Texas—have been admitted, with¬ 
out passing through the preliminary experiences and forms 
of a District or Territory. 

In the early case of American Insurance Company v. 
Canter, 10 Chief Justice Marshall said: 

“ Perhaps the power of governing a Territory belonging 
to the United States, which has not, by becoming a State, 
acquired the means of self-government, may result neces¬ 
sarily from the facts that it is not within the jurisdiction 
of any particular State, and is within the power and juris¬ 
diction of the United States. The right to govern may be 
the inevitable consequence of the right to acquire territory. 
Whichever may be the source whence the power is derived, 
the possession of it is unquestioned.’’ 

It is apparent from the history of the Constitutional Con¬ 
vention that but little attention was given by the members 
of that body to territorial forms of government. The clause 
under consideration is all there is in the Constitution in 
reference to the subject. The framers of the Constitution 
evidently intended to confer power upon Congress over 

territory —that is, domain. In United States v. Gratiot, 11 
it was said when considering this clause: 

“The term territory as here used is merely descriptive of 
one kind of property and is equivalent to the word Hands’.” 

§80. Government of Territory. The word “territory” 
or the expression “or other property belonging to the 
United States” does not refer to a territory such as students 
of the Constitution are now familiar with. The question 
of acquisition and government of territory has from time 
io 1 Pet. 542. 11 14 Pet. 526. 


114 


CONSTITUTION OF THE UNITED STATES 


to time been of significant importance in tlie history of the 
United States. After the question growing out of the 
purchase by President Jefferson of the Louisiana Territory 
from Napoleon had been settled, the general subject of the 
acquisition of territory was not of special interest until 
the Mexican War, when it became a great national issue, as 
the result of the following resolutions. 

Senator Walker on the 21st of February, 1849, introduced 
a resolution as an amendment to a bill, providing: 

“That all acts of a public and general character whose 
provisions can be made to apply to the territory west of 
the Rio del Norte, acquired from Mexico by treaty, be 
extended over and made in full force and efficacy in all 
said territory. ’ ’ 

The next day he amended his resolution by adding: 

“That the Constitution of the United States^ and the 
several Acts of Congress respecting the registering, record¬ 
ing, etc. be and are extended over and given full force and 
efficacy in all of said territory. ” 12 

This precipitated in the Senate a memorable discussion 
concerning the relation of the Constitution to the Terri¬ 
tories, which became national in its character. Mr. Cal¬ 
houn vigorously contended that the Constitution of its 
own strength went into new territory, while Mr. Webster on 
the other hand contended that the Constitution did not of 
its own force and strength, unaided by Congressional legis¬ 
lation go into such territory. 

Dred Scott v. Sanford. The question was next consid¬ 
ered by the Supreme Court in the great case of Dred Scott 
v. Sanford, 13 where it said the Constitution confers a power 
to admit new States into the Union, and, under this power, 
territory may be acquired which is intended to be admitted 
as new States, and which, from the necessity of the case, 
may be governed by Congress until fitted to be so admitted. 

Questions Arising out of the War with Spain. The 
acquisition of the Philippine Islands and of Porto Rico 

12 Congressional Globe Appendix, vol. 18, 561, 13 19 How. 393. 


CONSTITUTION OF THE UNITED STATES 


115 


by treaty with Spain called for the solution of many Con¬ 
stitutional law problems, and the cases dealing therewith 
are sometimes referred to as the Insular Cases. 

Doivnes v. Bidwell. It was more than half a century 
after the Dred Scott decision that the question again became 
of National importance. In considering the subject in 
Downes v. Bidwell, 14 Mr. Justice Brown, in delivering the 
opinion of a majority of the court, said: 

“The practical interpretation put by Congress upon the 
Constitution, has been long continued and uniform, to the 
effect that the Constitution is applicable to Territories 
acquired by purchase or conquest only when, and so far 
as Congress shall so direct. Notwithstanding its duty to 
‘guarantee to every State in this Union a republican form 
of government, by which we understand, according to the 
definition of Webster, ‘a government in which the Supreme 
Power resides in the whole body of the people, and is 
exercised by representatives elected by them’, Congress 
did not hesitate, in the original organization of the Terri¬ 
tories of Louisiana, Florida, the Northwest Territory, and 
its subdivisions of Ohio, Indiana, Michigan, Illinois, and 
Wisconsin, and still more recently in the case of Alaska, 
to establish a form of government bearing a much greater 
analogy to a British crown colony than a republican State 
of America, and to vest the legislative power either in a 
governor and council, or a governor and judges, to be 
appointed by the President. It was not until they had 
attained a certain population that power was given them 
to organize a legislature by vote of the people. In all 
these cases, as well as in Territories subsequently organ¬ 
ized west of the Mississippi, Congress thought it necessary 
either to extend the Constitution and laws of the United 
States over them or declare that the inhabitants should 
be entitled to enjoy the right of trial by jury, or bail, and 
of the privilege of the writ of habeas corpus , as well as 
other privileges of the Bill of Rights. ’ ’ 

Dorr v. United States. The question afterwards arose in 
Dorr v. The United States, 15 where Mr. Justice Day, speak¬ 
ing for the court said: 

“It may be regarded as settled that the Constitution 

1* 182 U. S. 244, 278, 279. is 195 U. S. 138, 140, 142, 


116 


CONSTITUTION OF THE UNITED STATES 


of the United States is the only source of power authorizing 
action by any branch of the Federal Government. 

It is equally well settled that the United States may acquire 
territory in the exercise of the treaty-making power by 
direct cession as the result of war, and in making effectual 
the terms of peace; and for that purpose has the powers 
of other sovereign nations. . . . While Congress may 

make laws for the government of Territories, without being 
subject to all the restrictions which are imposed upon that 
body when passing laws for the United States, considered 
as a political body of States in union, the exercise of the 
power expressly granted to govern the Territories is 
not without limitation. ... In every case where Con¬ 
gress undertakes to legislate in the exercise of the power 
conferred by the Constitution, the question may arise as 
to how far the exercise of the power is limited by the 
‘ prohibitions ’ of that instrument. The limitations which 
are to be applied in any given case involving territorial 
government must depend upon the relation of the particular 
Territory to the United States, concerning which Congress 
is exercising the power conferred by the Constitution. 
That the United States may have Territory, which is not 
incorporated in the United States as a body politic, we 
think was recognized by the framers of the Constitution 
in enacting the article already considered, giving power 
over the Territories, and is sanctioned by the opinions of 
the justices concurring in the judgment in Downes v. Bid- 
well . 16 Until Congress shall see tit to incorporate terri¬ 
tory ceded by treaty into the United States, we regard 
it as settled by that decision, that the Territory is to be 
governed under the power existing in Congress to make 
laws for such Territories and subject to such Constitu¬ 
tional restrictions upon the powers of that body as are 
applicable to the situation. The power to govern terri¬ 
tory 17 does not require Congress to enact for ceded terri¬ 
tory, not made a part of the United States by Congressional 
action, a system of laws which shall include the right of 
trial by jury, and the Constitution does not, without legis¬ 
lation and of its own force, carry such right to territory 
so situated . 9 9 

Rassmussen v. United States. The subject was again 
before the Supreme Court in the case of Rassmussen v. 


iQ 182 U. S. 244. 


i- 182 IT. S. 149. 


CONSTITUTION OF THE UNITED STATES 


117 


United States , 18 wliere the opinion was delivered by Mr. 
Justice White, who said: 

“Without attempting to examine in detail the opinions 
in the various cases, in our judgment it clearly results from 
them that they substantially rested upon the proposition 
that where territory was a part of the United States the 
inhabitants thereof were entitled to the guarantees of the 
Fifth, Sixth and Seventh Amendments, and that the act or 
acts of Congress purporting to extend the Constitution 
were considered as declaratory merely of the result which 
existed independently by the inherent operation of the 
Constitution.” 

Santiago v. Nogueras. Following this decision the 
Supreme Court stated in Santiago v. Nogueras : 19 

“The Civil Government of the United States cannot ex¬ 
tend immediately and of its own force over conquered and 
ceded territory. Theoretically, Congress might prepare and 
enact a scheme of civil government to take effect immedi¬ 
ately upon the cession, but, practically, there always have 
been delays and always will be. Time is required for a 
study of the situation, and for the maturing and enacting 
of an adequate scheme of civil government. In the mean¬ 
time, pending the action of Congress, there is no civil power 
under our system of government, not even that of the 
President as civil executive, which can take the place of 
the Government which has ceased to exist by the cession. 
Is it possible that, under such circumstances, there must be 
an interregnum? We think clearly not. The authority to 
govern such ceded territory is found in the laws applicable 
to conquest and cession. That authority is the military 
power, under the control of the President as commander 
in chief. In the case of Cross v. Harrison , 20 a situation 
of this kind was referred to in the opinion of the court, 
where it said: ‘It (the military authority) was the gov¬ 
ernment when the territory was ceded as a conquest, and 
it did not cease, as a matter of course, or as a necessary 
consequence of the restoration of peace. The President 
might have dissolved it by withdrawing the army and navy 
officers who administered it, but he did not do so. Con¬ 
gress could have put an end to it, but that was not done. 

is 197 U. S. 516, 526. 20 16 How. 164. 

19 214 U. S. 260, 265. 


118 


CONSTITUTION OF THE UNITED STATES 


The right inference from the inaction of both is that it was 
meant to be continued until it had been legislatively 
changed. No presumption of a contrary intention can be 
made. Whatever may have been the causes of delay, it 
must be presumed that the delay was consistent with the 
true policy of the Government ’. 21 The authority of a mili¬ 
tary government during the period between the cession 
and action of Congress, like the authority of the same gov¬ 
ernment before the cession, is of large, though it may not 
be of unlimited extent.” 

When Constitution Attaches to New Territory. From 
the foregoing decisions the following principle would seem 
to be established: Foreign territory acquired by the United 
States is subject to two classifications: First, territory 
which is incorporated into the United States. Such terri¬ 
tory becomes subject to the provisions of the Constitution, 
and the people residing therein become entitled to the bene¬ 
fits of the Constitution. Second, territory which may be 
considered as outlying and which has not been incorpo¬ 
rated into the United States. This is subject to the control 
of Congress under such powers conferred upon it by the 
Constitution as are applicable to such territory, but not 
necessarily including all the provisions of the Bill of Rights. 
The United States may hold territory which it has annexed 
until the inhabitants thereof become qualified to be citi¬ 
zens of the United States, and it is for Congress to deter¬ 
mine how long that period shall be. When foreign terri¬ 
tory has been acquired, the operations and provisions of 
the civil Government of the United States do not imme¬ 
diately extend to it of their own force, but until they do, 
the President has power to govern such territory by virtue 
of his authority as Commander in Chief of the army of the 
United States. 

The last section of the Fourth Article of the Constitution 
provides that: 

“The United States shall guarantee to every State in 
this Union a Republican Form of Government, and shall 
protect each of them against Invasion; and on Application 

21 16 How. 193, 194. 


CONSTITUTION OF THE UNITED STATES 


119 


of the Legislature, or of the Executive (when the Legis¬ 
lature cannot be convened), against domestic Violence.’* 

§ 81. Republican Form of Government. A republican 
form of government is a government in which the supreme 
power resides in the people, and i& exercised by representa¬ 
tives elected by the people. 22 It is not a republican gov¬ 
ernment which the Constitution guarantees to each State 
in the Union, but a form of government which is republican, 
and it has been held by the Supreme Court of the United 
States that: 

“The distinguishing feature of that form is the right 
of the people to choose their own officers for governmental 
administration, and pass their own laws in virtue of the 
legislative power reposed in representative bodies, whose 
legitimate acts may be said to be those of the people them¬ 
selves. ’ ’ 23 

A republican form of government may, therefore, be 
deemed to be one in which the people elect their law¬ 
makers and their public officers. The guarantee then of 
the Constitution to each State in the Union is that its 
people shall have the right to elect their representatives 
and their public officials. It is being today mooted, and 
indeed the question has been judicially raised but not yet 
decided, whether the adoption of the initiative, referendum, 
and recall of judges renders a government not republican 
in form. 

§ 82. Protection Against Invasion. The guarantee goes 
further and provides that the United States shall protect 
each of the States against invasion. A State is invaded 
when a public enemy enters it for warlike purposes. What 
shall amount to an invasion of a State, or in what manner 
the United States is to be made aware of the necessity of 
protecting a State because it is invaded, is not indicated in 
the Constitution. But it was held that Congress was the 
branch of the government which should determine the 
means with which a State may be protected against inva- 

22 Downes v. Bidwell, 182 U. S. 278, 279. 

23 In re Duncan, 139 U. S. 449, 461. 




120 


CONSTITUTION OF THE UNITED STATES 


sion, and that it might confer upon the President the 
power to decide when necessity arises for the interference 
of the general government. 24 

Decision Rests with President . Judge Story said in Mar¬ 
tin v. Mott : 2S 

“We are all of opinion that the authority to decide 
whether the exigency has arisen belongs exclusively to the 
President, and that fiis decision is conclusive upon all other 
persons. We think that this construction necessarily 
results from the nature of the power itself, and from the 
manifest object contemplated by the act of Congress. The 
power itself is to be exercised upon sudden emergencies, 
upon great occasions of state, and under circumstances 
which may be vital to the existence of the Union. A prompt 
and unhesitating obedience to orders is indispensable to the 
complete attainment of the object. The service is a mili¬ 
tary service, and the command of a military nature; and 
in such cases every delay and every obstacle to an efficient 
and immediate compliance necessarily tend to jeopard the 
public interests.” 

But if domestic violence interferes with interstate com¬ 
merce or with the mails, the General Government mav 
send troops into a State without request of the legislature 
or governor. 26 

The guarantee also goes further and binds the General 
Government to protect the States against domestic vio¬ 
lence. This guarantee, however, cannot be exercised unless 
the legislature of a State, or the executive thereof, in case 
the legislature cannot be called together, applies to the 
General Government for assistance. 

Domestic violence in this sense means some dissension 
or trouble within a State, which the State itself is powerless 
to control. 

24 Luther v. Borden, 7 How. 42, 43. 

25 12 Wheat. 19, 30. 

20 In re Debbs, 158 U. S. 564. 


CHAPTER VIII 


LAST THREE ARTICLES OF CONSTITUTION 

ARTICLE V 

§ 83. Amending the Constitution. The Fifth Article of 
the Constitution is devoted entirely to the subject of 
amendments. It provides: 

“The Congress, whenever two-thirds of both Houses shall 
deem it necessary, shall propose Amendments to this Con¬ 
stitution, or, on the Application of the Legislatures of two- 
thirds of the several States, shall call a Convention for 
proposing Amendments, which, in either Case, shall be 
valid to all Intents and Purposes, as Part of this Consti¬ 
tution, when ratified by the Legislatures of three-fourths of 
the several States, or by conventions in three-fourths 
thereof, as the one or the other Mode of Ratification may 
be proposed by the Congress; Provided that no Amend¬ 
ment which may be made prior to the Year One Thousand 
Eight Hundred and Eight shall in any Manner affect the 
first and fourth clauses in the Ninth Section of the First 
Article; and that no State, without its Consent, shall be 
deprived of its equal suffrage in the Senate.” 

The Articles of Confederation contained the provision: 

“No alteration shall at any time be made in any of the 
Articles, unless such alteration be agreed to in a Congress 
of the United States, and be afterwards confirmed by the 
legislatures of every State.” 

In the Convention which framed the Constitution this 
form was rejected, and two methods by which the Consti¬ 
tution could be amended were adopted. The first provides 
that whenever two-thirds of both houses of Congress shall 
deem it necessary, that body shall propose amendments to 
the Constitution. The other provides that on the appli- 

121 


122 CONSTITUTION OF THE UNITED STATES 

cation of the legislatures of two-thirds of the several 
States, Congress shall call a Convention proposing.amend¬ 
ments. An amendment to the Constitution must be rati¬ 
fied by the legislatures of three-fourths of the States, or by 
conventions held in three-fourths of the States in order to 
be binding. 

Effect of Ratification. After an Amendment has been 
ratified in either of the above ways, it is a part of the Con¬ 
stitution, as much as if it had been one of the original Arti¬ 
cles of that instrument. Each Amendment which has been 
proposed and ratified has been proposed by Congress upon 
the request of two-thirds of each house. At no time in the 
history of the Government has the required number of 
States under the Constitution asked Congress to call a con¬ 
vention for the purpose of suggesting Amendments. The 
people of the United States, or of any State, as such have 
nothing to do with the ratification or rejection of an Amend¬ 
ment to the Constitution. The Amendment is proposed in 
Congress and if it gets the required vote in that body, it 
is then submitted to the legislatures of the respective 
States—and not to the people of the respective States. 
There is no provision in the Constitution as to the time in 
which a State may ratify an Amendment. It has often 
occurred that a State does not ratify an Amendment for a 
long time after it had been submitted to its legislature. In 
ratifying the Constitution itself there was great difference 
in the time which the States took. It was nine months 
before New Hampshire ratified the Constitution, and it was 
two years and eight months before Ehode Island ratified it. 

No Fixed Time for Ratification. When the first ten 
Amendments to the Constitution were submitted, Virginia 
was the eleventh State which ratified them, thus securing 
the necessary number, but it was six or eight months after 
they had been proposed before Virginia’s ratification was 
made. It was three years and eight months before the 
Eleventh Amendment was ratified after being submitted. 
This was the longest time which any Amendment was pend¬ 
ing before the States until it was ratified. 


CONSTITUTION OF THE UNITED STATES 123 

This subject seems to have escaped the attention of the 
members of the Constitutional Convention and whether 
they would have inserted a provision on the subject in the 
Constitution is of course mere conjecture, but the question 
may well arise: 

How long can a legislature consider an Amendment to 
the Constitution before it approves or rejects it? 

Buckalew Amendment. Senator Buckalew of Pennsvl- 

# * 

vama seems to have had his mind upon this subject when 
the Fourteenth Amendment was before the Senate, for he 
attempted to secure an Amendment providing: 

4 'That the Amendment should be passed upon by the 
legislature of each State at its first session next after its 
submission, and that no acceptance or rejection should be 
reconsidered or again brought in question at any subse¬ 
quent session, nor shall any acceptance of the Amendment 
be valid if made after three years from the passage of this 
resolution.” 

This Amendment, however, was rejected by the Senate 
and it remains an unsettled question how long a time a 
State has in which to ratify or reject an Amendment to 
the Constitution. The question may some day become of 
great importance. There is now an Amendment to the Con¬ 
stitution pending. It must be ratified by thirty-five States 
before it can become a part of the Constitution. Let us sup¬ 
pose that thirty-four States ratify it within a reasonable 
time, but the thirty-fifth delays its ratification for a num¬ 
ber of years, but finally ratifies it? Would this ratification 
come within the meaning and terms of the Constitution? 
Again, suppose that between the ratification of the thirty- 
fourth State and the ratification of the thirty-fifth State, 
new States should be admitted. Would it be necessary that 
the Constitutional number of the States then existing 
should ratify or the number at the time the Amendment 
was submitted? Presumably the latter would control, but 
the question is not free from doubt. It is the prerogative 
of each State in the Union to ratify or reject an Amend- 


124 


CONSTITUTION OF THE UNITED STATES 


ment. Is it not equally the prerogative of the State to 
determine at what particular time its action shall occur? 
What other power of the Government has the right to say 
to a State within what time it shall act upon an Amend¬ 
ment? It is fortunate that the Constitution itself provides 
how it may be amended. In the Convention of North Caro¬ 
lina which ratified the Constitution, Mr. Iredell made the 
following observations upon this clause: 

“This is a very important clause. In every other Con¬ 
stitution of Government that I have ever heard or read of, 
no provision is made for necessary Amendments. The 
misfortune attending most Constitutions which have been 
deliberately formed has been, that those who formed them 
thought their wisdom equal to all possible contingencies 
and that there could be no error in what they did. The 
gentlemen who framed this Constitution thought with much 
more diffidence of their capacity; and, undoubtedly, with¬ 
out a provision for Amendment it would have been more 
justly liable to objection, and the characters of its framers 
would have appeared much less meritorious. This, indeed, 
is one of the greatest beauties of the system, and should 
strongly recommend it to every candid mind. The Con¬ 
stitution of any Government which can not be regularly 
amended when its defects are experienced, reduces the peo¬ 
ple to this dilemma—they must either submit to its oppres¬ 
sions, or bring about Amendments more or less by civil 
war. ’ ’ 


President’s Approval of Amendments. The first ten 
Amendments to the Constitution were not submitted to 
the President for his signature and approval, but when 
the Eleventh Amendment was submitted, the question 
whether it was necessary for the President to approve an 
Amendment arose, and was taken to the Supreme Court. 
The Amendment had not been submitted to the President. 
In the case of Hollingsworth v. Virginia, 1 the Supreme 
Court held that the adoption of the Amendment was Con¬ 
stitutional although it had not been presented to the Presi¬ 
dent for his approval. The question again came up when 

i 3 Dali. 378, 381; 


CONSTITUTION OF THE UNITED STATES 125 

the Twelfth Amendment was considered by the Senate, and 
by a vote of twenty-three to seven it was decided not to 
submit the Amendment to the President. More than sixty 
years later, in 1865, the Thirteenth Amendment was pro¬ 
posed, and submitted to the President. Senator Trumbull 
then introduced the following resolution in the Senate: 

“The article of Amendment, proposed by Congress, 
to be added to the Constitution respecting slavery, having 
been inadvertently presented to the President for his 
approval, it is declared that such approval was unnecessary, 
and should not constitute a precedent for the future.’’ 

The Senate considered this resolution at length, and 
great diversity of opinion was developed. Senator Howe 
of Iowa, was of the opinion that an Amendment should be 
presented to the President for his signature. In referring 
to the vote on that subject in the Senate in 1803, he called 
attention to the fact that among the names of Senators who 
voted to present the Amendment to the President for his 
approval were those of John Quincy Adams, and Mr. Pick¬ 
ering, whom he thought to be entitled to great respect. 
Senator Johnson was of the opinion that if the question 
was before the Senate for the first time it could not be 
said it was free from doubt, but he believed the precedent 
had settled it, and it was not necessary to present an 
Amendment to the President. The resolution of Senator 
Trumbull was agreed to, and in this way the Senate of the 
United States for the second time adopted a resolution 
that the President need not approve a Constitutional 
Amendment. 

Andrew Johnson was President in 1866, when the Four¬ 
teenth Amendment was adopted, which was not submitted 
to him. Feeling chagrined at the action of Congress in not 
sending him the Amendment, he sent the following mes¬ 
sage to that body: 

“I submit to Congress a report of the Secretary of State, 
to whom was referred the concurrent resolution of the 18th 
instant, respecting a submission to the legislatures of the 


126 


CONSTITUTION OF THE UNITED STATES 


States of an additional Article to the Constitution of the 
United States. It will be seen from this report that the 
Secretary of State had, on the 16th instant, transmitted to 
the governors of the several States certified copies of the 
joint resolution passed on the 13th instant, proposing an 
Amendment of the Constitution. 

44 Even in ordinary times any question of amending 
the Constitution must be justly regarded as of paramount 
importance. This importance is at the present time 
enhanced by the fact that the joint resolution was not sub¬ 
mitted by the two Houses for the approval of the Presi¬ 
dent, and that, of the thirty-six States which constitute the 
Union, eleven are excluded from representation in either 
House of Congress, although, with the single exception of 
Texas, they have been entirely restored to all their func¬ 
tions as States, in conformity with the organic law of the 
land, and have appeared at the National Capital by Sena¬ 
tors and Representatives who have applied for, and have 
been refused admission to the vacant seats. Nor have 
the sovereign people of the Nation been afforded an oppor¬ 
tunity of expressing their views upon the important ques¬ 
tion which the Amendment involves. Grave doubts, there¬ 
fore, may naturally and justly arise as to whether the 
action of Congress is in harmony with the sentiments of 
the people, and whether State legislatures, elected without 
reference to such an issue, should be called upon by Con¬ 
gress to decide respecting the ratification of the proposed 
Amendment. 

4 4 Waiving the question as to the Constitutional validity 
of the proceedings of Congress upon the joint resolution 
proposing the Amendment, or as to the merits of the Article 
which it submits, through the executive department, to the 
legislatures of the States, I deem it proper to observe that 
the steps taken by the Secretary of State, as detailed in 
the accompanying report, are to be considered as purely 
ministerial, and in no sense whatever committing the Execu¬ 
tive to an approval or a recommendation of the Amendment 
to the State legislatures, or to the people. On the con¬ 
trary, a proper appreciation of the letter and spirit of the 
Constitution, as well as of the interests of National 
order, harmony, and union, and a due deference for an 
enlightened public judgment, may at this time well suggest 
a doubt whether any Amendment to the Constitution ought 
to be proposed by Congress, and pressed upon the legisla¬ 
tures of the several States for final decision, until after the 


12?' 


CONSTITUTION OF THE UNITED STATES 


admission of such loyal Senators and Representatives of 
the now unrepresented States as have been or as may here¬ 
after be chosen in conformity with the Constitution and 
laws of the United States. 


Washington, D. C., June 22, 1866.” 


Andrew Johnson. 2 


The Fifteenth Amendment was never submitted for the 
President's signature. It is strange that, after the Supreme 
Court had decided in Hollingsworth v. Virginia, that an 
Amendment need not be submitted to the President for his 
signature, the legislative branch of the Government subse¬ 
quently raised the question. The following letter written 
by Mr. Madison to Mr. George Eve as early as January 2, 
1789, is an interesting contribution to the general subject 
as to how the Constitution shall be amended: 


“I have intimated that the Amendments ought to be pro¬ 
posed by the first Congress. I prefer this mode to that of a 
General Convention. First, because it is the most expedi¬ 
tious mode. A convention must be delayed until two-thirds 
of the State legislatures shall have applied for one, and 
afterwards the amendments must be submitted to the 
States. Secondly, because it is the most certain mode. 
There are not a few States which will absolutely reject the 
proposal of a Convention, and yet not be averse to amend¬ 
ments in the other mode. Lastly, it is the safest mode. 
The Congress, which will be appointed to execute as well as 
to amend the Government, -will probably be careful not to 
destroy or endanger it. A Convention, on the other hand, 
meeting in the present ferment of parties, and containing, 
perhaps, insidious characters from different parts of Amer¬ 
ica, would at least spread a general alarm, and be but too 
likely to turn everything into confusion and uncertainty. 
It is to be observed, however, that the question concerning 
a General Convention will not belong to the Federal Legisla¬ 
ture. If two-thirds of the States apply for one, Congress 
cannot refuse to call it; if not, the other mode of Amend¬ 
ments must be pursued." 3 

§ 84. Equal Representation in the Senate. The article 
concludes with this important provision, that “no State 

2 Messages of President Johnson, June 22, 1866. 

s Madison’s Writings, Vol. I, 418. 


128 CONSTITUTION OF THE UNITED STATES 

without its Consent, shall be deprived of its equal Suffrage 
in the Senate.” The authorship of this clause is attributa¬ 
ble to Mr. Gouverneur Morris. Mr. Madison said of this 
clause: 

“It was probably meant as a palladium to the residuary 
sovereignty of the States, implied and secured by that prin¬ 
ciple of representation in one branch of the legislature; 
and was probably insisted on by the States particularly 
attached to that equality.” 

It was adopted in order to establish and maintain the 
equality of the States in the Senate, for nothing was to 
deprive a State of any of its legislative powers without its 
consent. 


ARTICLE VI 

§ 85. Valid Debts. The Sixth Article of the Constitu¬ 
tion begins with these words: 

“All debts contracted and engagements entered into, 
before the Adoption of this Constitution, shall be as valid 
against the United States under this Constitution, as under 
the Confederation.” 

Governor Randolph suggested this provision. It was 
probably suggested by the Articles of Confederation, which 
provide: 

“All bills of credit emitted, moneys borrowed, and debts 
contracted by or under the authority of Congress, before the 
assembling of the United States in pursuance of the present 
confederation, shall be deemed and considered as a charge 
against the United States for payment and satisfaction 
whereof the United States and the public faith are hereby 
solemnly pledged.” 

The clause as inserted in the Constitution was a mani¬ 
festation of the good faith and purpose of the men who 
framed that instrument. There was an attempt made in 
the Convention by some who were indebted to the British 
government to show that, as a result of the Revolutionary 
War, all contracts had been dissolved, and all debtors 


129 


CONSTITUTION OF THE UNITED STx^TES 

released from their prior foreign obligations, but the adop¬ 
tion of this clause was a construction to the contrary. 

§ 86. Supreme Law. The Article continues: 

“This Constitution, and the Laws of the United States 
which shall be made in pursuance thereof; and all Treaties 
made, or which shall be made, under the Authority of the 
United States, shall be the Supreme Law of the Land ; and 
the Judges in every State shall be bound thereby, anything 
in the Constitution or Laws of Any State to the Contrary 
notwithstanding. ’ ’ 

Under this provision, the Supreme Law of the land con¬ 
sists, first, of the Constitution; second, of the laws that 
shall be made in pursuance thereof; third, of all treaties 
made under authority of the United States. It is probable 
the authority attributable to the Constitution, to the laws 
made in pursuance thereof, and the authority as to treaties 
would have been the same if this clause had not been 
adopted. A Constitution should always be the Supreme 
.Law of the land and the laws themselves are supreme, 
being the rules which guide the conduct of citizens. It 
will be observed, however, it is only those laws which are 
passed in pursuance of the Constitution which are to be 
supreme; if, when tested in court by the Constitution, they 
fail, they do not become the Supreme Law of the land. 
Prior to the adoption of the Constitution, the States had 
largely disregarded the treaties which they had made. This 
had been carried to such an extent that Congress itself 
protested against such conduct. The framers of the Con¬ 
stitution, therefore, had a special purpose in making trea¬ 
ties a part of the Supreme Law of the land, and in pledging 
the judiciary of the States to maintain them. The insertion 
of this clause is a recognition by the Constitution that that 
instrument and the laws made in pursuance thereof, and 
the treaties made under authority of the United States, are 
to be the Supreme Law of the land, and, therefore, no act 
of Congress can be binding which is not so authorized. 

§ 87. Oath to Support Constitution. This Article con¬ 
cludes with these provisions: 


130 


CONSTITUTION OF THE UNITED STATES 


“The Senators and Representatives before mentioned, 
and the members of the several State legislatures, and all 
executive and judicial Officers, both of the United States 
and of the several States, shall be bound by Oath or Affirma¬ 
tion, to support this Constitution; but no religious Test 
shall ever be required as a Qualification to any Office or 
public Trust under the United States/’ 

There was no provision in the Articles of Confederation 
requiring officers of a State to support the Articles. The 
provision in this clause is general. It applies to the offi¬ 
cers of the executive, legislative, and judicial branches 
of the Government as well as of each State government to 
take an oath or affirmation to support the Constitution. 

Taking the oath is mandatory upon all the officers in¬ 
cluded within this clause. 

§ 88. Religious Tests. The concluding clause of the 
Article is one of great importance. It was submitted to 
the Convention by one of the Pinckneys. Its purpose was 
to keep separate the Church and State in the United States, 
and it has received the approval of the American people. 
It was adopted without objection in the Convention. As 
late as 1876, an Amendment was proposed to the Consti¬ 
tution the purpose of which was to exclude ministers of 
any denomination from ever holding any office under the 
Government, but it failed of Congressional recognition. 

ARTICLE VII 

§ 89. Ratification of the Constitution. The Seventh and 

last Article of the Constitution is as follows: 

“The Ratification of the Conventions of nine States, shall 
be sufficient for the establishment of this Constitution 
between the States so ratifying the Same. ’ ’ 

The Articles of Confederation under the subject of Rati¬ 
fication provided: 

“That no alteration should be made in any of the Articles, 
unless it was agreed to in a Congress of the United States 
and afterwards confirmed by the legislatures of every 
State.” 4 

4 Art. XIII. 


CONSTITUTION OF THE UNITED STATES 131 

The framers of the Constitution felt that if such unani¬ 
mous action should he required to ratify the Constitution 
it might fail of ratification, and consequently the above 
clause was adopted. It was certainly a wise provision in 
view of the feeling that then existed in many of the States 
against the Constitution. 

Mr. Madison in the forty-third number of the Federalist 
made a vigorous defense of this clause. 

The Constitution, and a resolution relative to it, which 
was passed by the convention, together with the letter of 
Washington, which was presented to the Convention, were 
transmitted to Congress, and that body received them on 
the 20th of December, 1787. On the 29th of the same 
month, Congress passed the following resolution: 

“Resolved, that said report, (viz, the Constitution) with 
the resolutions and the letter accompanying the same, be 
transmitted to the several legislatures, in order that it be 
submitted to a convention of delegates chosen in each State 
by the people thereof in conformity to the resolves of the 
Convention made and provided in that case.” 

Ratification hy the States. After the adoption of the 
foregoing resolution Congress sent a copy of the Constitu¬ 
tion to each State. Delaware was the first State to ratify 
the Constitution, which it did by unanimous vote on Decem¬ 
ber 7,1787. Pennsylvania was the second State which rati¬ 
fied by a vote of forty-six to twenty-three, on December 12, 
1787; then came New Jersey six days later with a unani¬ 
mous vote in favor of the Constitution. On January 2, 
1788, Georgia ratified by unanimous vote. Connecticut 
ratified by a vote of one hundred and twenty-eight to forty, 
on January 9, 1788. After a long and strenuous struggle, 
Massachusetts ratified by a vote of one hundred and eighty- 
seven to one hundred and sixty-eight, on the 6th of Feb¬ 
ruary, 1788. But it was not until after an understanding 
had been arrived at that Amendments should be made 
to the Constitution that Massachusetts ratified, and this 
precedent was followed in some other States. On April 
28, 1788, Maryland ratified by a vote of sixty-three to 


132 


CONSTITUTION OF THE UNITED STATES 


eleven, and on May 23, 1788, South Carolina ratified by 
vote of one hundred and forty-nine to seventy-three. At 
its first convention held for that purpose, New Hamp¬ 
shire failed to pass a resolution to ratify, but at its second 
convention, which was on the 21st of June, 1788, it 
ratified on a vote of fifty-seven to forty-six. This made 
the ninth State which ratified the Constitution and thus 
secured the requisite number under the Constitution. 
On June 26, 1788, Virginia ratified by a vote of eighty- 
nine to seventy-nine, after a most bitter contest. New 
York did not ratify until the 26th of July, 1788, and 
then by a vote of thirty-seven to thirty; and like Massa¬ 
chusetts the friends of the Constitution agreed with its 
opponents that a Convention should be called for the 
consideration of Amendments. North Carolina, like New 
Hampshire, at its first Convention refused to ratify the 
Constitution, but at its second convention held on Novem¬ 
ber 21, 1789, the ratification was carried by a majority of 
eleven votes. Rhode Island was the only State which did 
not send delegates to the Constitutional convention, and, 
therefore, the only State that did not take part in the 
formation of the Constitution. That State was the last to 
ratify the Constitution, which it did on May 29, 1789, by 
a vote of thirty-four to thirty-two, the closest vote in any 
State where there was a division of sentiment. 


CHAPTER IX 

FIRST TEN AMENDMENTS 


§ 90. Bill of Rights. We have seen that the Constitution 
provides how it may he amended. We will now consider 
the history of the first ten amendments to that instrument. 

A strenuous effort was made in the Constitutional Con¬ 
vention to secure the insertion in the Constitution of a Bill 
of Rights—by which was meant an enumeration in the Con¬ 
stitution of the fundamental principles relating to per¬ 
sonal liberty and property, but the effort failed. Some of 
the greatest men in the Convention thought it would be 
unwise to insert such a provision in the Constitution. The 
strongest reasons for this omission were given by Mr. 
Hamilton, Mr. Madison, and Mr. Wilson. 

Hamilton’s Reasons . Mr. Hamilton in the eighty-fourth 
number of the Federalist discussed at great length the rea¬ 
sons for omitting a Bill of Rights from the Constitution, 
and among other things said: 

“I go further, and affirm, that Bills of Rights, in the 
sense and to the extent they are contended for, are not only 
unnecessary in the proposed Constitution, but would even 
be dangerous. They would contain various exceptions to 
powers not granted; and on this very account, would afford 
a colorable pretext to claim more than were granted. For 
why declare that things shall not be done, which there is no 
power to do? Why, for instance, should it be said, that the 
liberty of the Press shall not be restrained, when no power 
is given by which restrictions may be imposed? I will not 
contend that such a provision would confer a regulating 
power; but it is evident that it would furnish, to men dis¬ 
posed to usurp, a plausible pretense for claiming that 
power. They might urge with a semblance of reason, that 
the Constitution ought not to be charged with the absurdity 
of providing against the abuse of an authority which was 
not given, and that the provision against restraining the 

133 


134 


CONSTITUTION OF THE UNITED STATES 


liberty of the Press afforded a clear implication that a 
right to prescribe proper regulations concerning it, was 
intended to be vested in the National Government. This 
may serve as a specimen of the numerous handles, 
which would be given to the doctrine of constructive 
powers, by the indulgence of an injudicious zeal for Bills 
of Rights. . 

“ There remains but one other view of this matter to con¬ 
clude the point. The truth is, after all the declamation we 
have heard, that the Constitution is itself, in every rational 
sense, and to every useful purpose, a Bill of Rights. The 
several Bills of Rights, in Great Britain, form its Consti¬ 
tution, and conversely the Constitution of each State is its 
Bill of Rights. In like manner the proposed Constitution, 
if adopted, will be the Bill of Rights of the Union. Is it 
one object of a Bill of Rights, to declare and specify the 
political privileges of the citizens in the structure and 
administration of the Government? This is done in the most 
ample and precise manner in the plan of the Convention; 
comprehending various precautions for the public security, 
which are not to be found in any of the State Constitutions. 
Is another object of a Bill of Rights to define certain immu¬ 
nities and modes of proceeding, which are relative to per¬ 
sonal and private concerns? This we have seen has also 
been attended to, in a variety of cases, in the same plan. 
Adverting, therefore, to the substantial meaning of a Bill 
. of Rights, it is absurd to allege that it is not to be found 
in the work of the Convention. It may be said that it does 
not go far enough, though it will not be easy to make this 
appear; but it can with no propriety be contended that there 
is no such thing. It certainly must be immaterial what 
mode is observed as to the order of declaring the rights of 
the citizens, if they are provided for in any part of the 
instrument which establishes the Government. "Whence it 
must be apparent that much of what has been said on this 
subject rests merely on verbal and nominal distinctions, 
entirely foreign to the substance of the thing.” 

Madison’s Reasons . Mr. Madison in a letter written to 
Mr. Jefferson on the 17th of October, 1788, said: 

“It is true, nevertheless, that not a few, particularly in 
Virginia, have contended for the proposed alterations from 
the most honorable and patriotic motives; and that among 
the advocates for the Constitution there are some who wish 



CONSTITUTION OF THE UNITED STATES 


135 


for further guards to public liberty and individual rights. 
As far as these may consist of a Constitutional declaration 
of the most essential rights, it is probable they will be 
added; though there are many who think such addition 
unnecessary, and not a few who think it misplaced in such 
a Constitution. There is scarce any point on which the 
party in opposition is so much divided as to its importance 
and its propriety. My own opinion has always been in 
favor of a Bill of Rights, provided it be so framed as not 
to imply powers not meant to be included in the enumera¬ 
tion. At the same time, I have never thought the omission 
a material defect, nor have I been anxious to supply it even 
by subsequent amendment, for any other reason than that 
it is anxiously desired by others. I have favored it because 
I supposed it might be of use, and if properly executed, 
could not be of disservice. 

“I have not viewed it in an important light: (1) Because 
I conceive that in a certain degree, though not in the extent 
argued by Mr. Wilson, the rights in question are reserved 
by the manner in which the Federal powers are granted. 
(2) Because there is great reason to fear that a positive 
declaration of some of the most essential rights could not 
be obtained in the requisite latitude. I am sure that the 
rights of conscience in particular, if submitted to public 
definition, would be narrowed much more than they are 
likely ever to be by an assumed power. One of the objec¬ 
tions in New England was, that the Constitution, by pro¬ 
hibiting religious tests, opened a door for Jews, Turks, and 
infidels. (3) Because the limited powers of the Federal 
Government, and the jealousy of the subordinate Govern¬ 
ments, afford a security which has not existed in the case 
of the State governments, and exists in no other. (4) 
Because experience proves the inefficacy of a Bill of Rights 
on those occasions when its control is most needed. 
Repeated violations of these parchment barriers have been 
committed by overbearing majorities in every State. 

“In Virginia, I have seen the Bill of Rights violated in 
every instance where it has been opposed to a popular 
current. Notwithstanding the explicit provision contained 
in that instrument for the rights of conscience, it is well 
known that a religious establishment would have taken 
place in that State, if the legislative majority had found, as 
they expected, a majority of the people in favor of the 
measure; and I am persuaded that if a majority of the 
people were now of one sect, the measure would still take 


136 


CONSTITUTION OF THE UNITED STATES 


place, and on narrower ground than was then proposed, 
notwithstanding the additional obstacle which the law has 
since created. 

“Wherever the real power in a government lies, there is 
the danger of oppression. In our Government the real 
power lies in the majority of the community, and the inva¬ 
sion of private rights is chiefly to be apprehended, not from 
acts of government contrary to the sense of its constituents, 
but from acts in which the Government is the mere instru¬ 
ment of the major number of the constituents. This is a 
truth of great importance, but not yet sufficiently attended 
to and is probably more strongly impressed on my mind 
by facts and reflections suggested by them than on yours, 
which has contemplated abuses of power issuing from a 
very different quarter. Wherever there is an interest and 
power to do wrong, wrong will generally be done, and not 
less readily by a powerful and interested party, than by 
a powerful and interested prince. The difference, so far 
as it relates to the superiority of republics over monarchies, 
lies in the less degree of probability that interest may 
prompt abuses of power in the former than in the latter; 
and in the security in the former against an oppression of 
more than the smaller part of the society, whereas, in the 
latter, it may be extended in a manner to the whole.’’ 1 

Wilson 9 s Reasons. Mr. Wilson, who was one of the 
recognized influential members of the Convention which 
framed the Constitution, as a member of the Pennsylvania 
Convention called to ratify or reject the Constitution, made 
the following observation of the omission of a Bill of 
Bights: 

“In a government consisting of enumerated powers, such 
as was then proposed for the United States, a Bill of Bights, 
which is an enumeration of the powers reserved by the 
people, must be a perfect or an imperfect statement of the 
powers and privileges reserved. To undertake a perfect 
enumeration of the civil rights of mankind, is to undertake 
a very difficult and hazardous, and perhaps an impossible 
task; yet if the enumeration is imperfect, all implied power 
seems to be thrown into the hands of the Government, on 
subjects in reference to which the authority of government 
is not expressly restrained, and the rights of the people are 

i Madison’s Writings, vol. 1, 423, 427. 


CONSTITUTION OF THE UNITED STATES 


137 


rendered less secure tlian they are under the silent operation 
of the maxim that every power not expressly granted 
remains in the people. ’ ’ 

This, he stated, was the view taken by a large majority 
of the National Convention, in which no direct proposition 
was ever made, according to his recollection, for the inser¬ 
tion of a Bill of Rights. 2 

Constitution Indefinite. Notwithstanding the powerful 
influence of these great leaders of the Convention, and 
others who agreed with them, a very general feeling pre¬ 
vailed that the Constitution was not definite enough con¬ 
cerning religious liberty, freedom of the press, protection 
of private property, search and seizure, and those matters 
which pertain to the preservation of individual rights. As 
Mr. Ames has said: 

“In many of the States opposition to the ratification of 
the Constitution was based upon the absence of specific 
reservation of the rights of the people. The precedent of 
the great English declaratory statutes had been followed in 
the elaborate Bill of Rights which prefaced most of the 
State Constitutions. In vain did the friends of the Consti¬ 
tution urge that the General Government was in its nature 
limited, and that all rights not expressly granted must be 
retained. The people did not feel secure in the enjoyment 
of life, liberty, and property, without a written guaranty to 
protect them from encroachments of the General Govern¬ 
ment. ’ 9 3 

It was this feeling which demanded the adoption of the 
Amendments and when the Constitution was submitted to 
the States many of them returned to Congress the Amend¬ 
ments which they had considered should be made to the 
Constitution, together with that instrument. It was found 
on examination that Massachusetts had proposed nine, 
South Carolina four, North Carolina twenty-six, Virginia 
twenty, New York thirty-two, and New Hampshire twelve. 
In the Convention of Pennsylvania, the minority members 
proposed fourteen, while in Maryland they proposed 

2 Curtis’ History of Constitution, vol. 2, 522, 523. 

3 Ames’ Amendments to the Constitution, 183. 


138 


CONSTITUTION OF THE UNITED STATES 


twenty-eight Amendments, and Virginia and New York 
each suggested a Bill of Rights, the first of which contained 
twenty and the last twenty-four Amendments. 

§91. Introduction of Amendments. From the Annals 
we learn that Mr. Madison on the 18th of June, 1789, only 
a few weeks after the first organization of the House of 
Representatives, addressed the House on the subject of 
Amendments as follows: 

“This day, Mr. Speaker, is the day assigned for taking 
into consideration the subject of Amendments to the Consti¬ 
tution. As I considered myself bound in honor and in duty 
to do what I have done on this subject, I shall proceed to 
bring the Amendments before you as soon as possible, and 
advocate them until they shall be finally adopted, or rejected 
by a Constitutional majority of this House. With the view 
of drawing your attention to this important object, I shall 
move that this House do now resolve itself into a Committee 
of the Whole on the state of the Union, by which an oppor¬ 
tunity will be given, to bring forward some propositions, 
which I have strong hopes will meet with the unanimous 
approbation of this House, after the fullest discussion and 
most serious regard. I, therefore, move you that the House 
now go into a committee on this business.” 4 

Upon the submission of Mr. Madison’s motion it was dis¬ 
covered that much diversity of opinion existed among the 
members on the subject. It was claimed by some that Con¬ 
gress should not undertake to amend the Constitution until 
it had a large experience under it. Some members also 
objected to considering the subject in Committee of the 
Whole, while still others thought it inopportune to inter¬ 
rupt the general business of Congress by considering the 
subject of Amendments. To these objections Mr. Madison 
replied, and at the conclusion of his argument submitted 
eight Amendments, several of which contained sub-amend¬ 
ments. These propositions embraced most of the provisions 
which had been submitted as Amendments by the State 
Conventions. Mr. Madison then made a motion: 


4 1 Annals 441. 


CONSTITUTION OF THE UNITED STATES 139 

‘ ‘ That a committee be appointed to consider and report 
such Amendments as ought to be proposed by Congress to 
the Legislatures of the States.” 5 

§92. Consideration of Amendments. On the 21st of 
July, Mr. Madison again moved that the House go into a 
Committee of the Whole with reference to Amendments. 
This motion was adopted, but the committee appointed in 
pursuance of it was discharged in a short time from the 
consideration of the subject, and a resolution adopted by 
the House that the Amendments which Mr. Madison had 
proposed, together with those proposed by the various 
States should be referred to a Committee of One from each 
State, which Committee was instructed to take the sub¬ 
ject of Amendments into consideration and report to the 
House. 6 

The members of this important Committee were Messrs. 
Vining, Madison, Baldwin, Sherman, Burke, Gilman, Cly- 
mer, Benson, Goodlie, Boudinot, and Gale. 

Messrs. Madison, Baldwin, Sherman, Gilman and Cly- 
mer, had been members of the Constitutional Convention. 

The Committee reported to the House on the 13th of 
August. 

It was Mr. Madison’s desire that the Amendments should 
be incorporated into the Articles of the Constitution, to 
which they referred. This question provoked an extended 
debate in the Convention, but it was finally determined by 
the adoption of the following resolution: 

“ Resolved, by the Senate and House of Representatives 
of the United States, in Congress Assembled, that the fol¬ 
lowing articles be proposed as Amendments to the Consti¬ 
tution, and when ratified by three-fourths of the State legis¬ 
latures, shall become valid to all intents and purposes, as 
part of the same. ’ ’ 7 

On the 25th of August, the House of Representatives sent 
a communication to the Senate proposing certain articles 
as Amendments which the House had adopted. The pro- 


s 1 Annals 452, 459. 
6 1 Annals 690. 


7 1 Annals 735. 


140 


CONSTITUTION OF THE UNITED STATES 


posecl Amendments were not received with pleasure by cer¬ 
tain members of the Senate; and it was moved that their 
consideration be postponed until the following session, but 
the motion was defeated and the Amendments were consid¬ 
ered. On the 9tli of September the Senate advised the 
House that it had agreed to some of the Amendments which 
the House had proposed and disagreed as to the balance. 8 
To this the House replied that it desired a conference on 
the subject of Amendments; which was held. 

Amendments Passed. On the 25th of September, 1789, 
three and one-half months after Mr. Madison had called 
the attention of the House of Representatives to the sub¬ 
ject of Amendments, the Senate and the House passed 
twelve Amendments, which were sent by the President to 
the Governors of the States. After the States had consid¬ 
ered the Amendments and returned them to the President 
and to Congress, a Committee was appointed on the 20th 
of July, 1790, a little more than one year from the time the 
Amendments were passed by Congress to consider and 
report on them. That important report was in the follow¬ 
ing language: 

“New Hampshire and New York accepted all the articles 
but the second. Pennsylvania passed over in silence the 
first and second articles, and accepted the rest. Maryland, 
South and North Carolina, and Rhode Island ratified the 
whole. So that it appears that the first article has been 
agreed to by six States; the second by five; and all the 
others by eight. ’* 9 

From this report we learn that of the twelve Amend¬ 
ments submitted to the States by Congress, the first and 
second failed of ratification while the remaining ten were 
ratified. 

The following are the dates of ratification of the ten 
Amendments: New Jersey, November 20, 1789; Maryland, 
December 19, 1789; North Carolina, December 22, 1789; 
South Carolina, January 19, 1790; New Hampshire, Janu¬ 
ary 25, 1790; Delaware, January 28, 1790; Pennsylvania, 

0 2 Annals 713, 714. 


8 1 Annals 80. 


CONSTITUTION OP THE UNITED STATES 141 

March 10,1790; New York, March 27, 1790; Rhode Island, 
June 15, 1790; Vermont, November 3, 1791; Virginia, De- 
cember 15, 1791. 

The ratification of the Amendments dates from the day 
on which Virginia ratified them, that State constituting the 
requisite three-fourths. It may be instructive to notice 
some of the comments concerning the Amendments at the 
time they were pending. Fisher Ames wrote as follows 
concerning them: 

Comments on Amendments. “We had the Amendments 
on the tapis and referred them to a Committee of one from 
a State. I hope much debate will be avoided by this mode 
and that the Amendments will be more rational and less 
ad populum than Madison’s. It is necessary to conciliate, 
and I would have amendments. But they should not be 
rash,, such as would dishonor the Constitution, without 
pleasing its enemies. Should we propose them, North Caro¬ 
lina would accede. It is doubtful in case we should not.” 10 

Pierce Butler wrote James Iredell on the 11th of August, 
1789, as follows: 

H , ./ 

“A few milk-and-water Amendments have been proposed 
by Mr. M., such as liberty of conscience, a free press, and 
one or two general things already well secured. I suppose 
it was done to keep his promise with his constituents, to 
move for alterations; but, if I am not greatly mistaken, he 
is not hearty in the cause of Amendments.” 11 

On the 14th of September, 1789, Richard Henry Lee— 
who in the Continental Congress proposed the resolution 
which led to the adoption of the Declaration of Independ¬ 
ence—wrote Patrick Henry as follows: 

“The Amendments were far short of the wishes of our 
convention, but as they are returned by the Senate they are 
certainly much weakened. The most essential danger from 
the present system arises, in my opinion, from its tendency 
to a consolidated Government instead of a Union of con¬ 
federated States.” 12 

io Life of Ames, vol. 1, 65. 

nMcRea’s Iredell, vol. 2, 265. 

12 Thorpe *s Constitutional History of the United States, vol. 2, 260, 261 
note. 



142 


CONSTITUTION OF THE UNITED STATES 


Marshall on the Amendments. Chief Justice Marshall, 
in his Life of Washington, gives the following account of 
the adoption of the Amendments: 

* ‘ In the course of this session was also brought forward 
a proposition made by Mr. Madison for recommending to 
the consideration and adoption of the States, several new 
articles to he added to the Constitution. 

“Many of those objections to it which had been urged 
with all the vehemence of conviction, and which in the 
opinion of some of its advocates, were entitled to serious 
consideration, were believed by the most intelligent to exist 
only in imagination, and to derive their sole support from 
an erroneous construction of the instrument. Others were 
upon points on which the objectors might be gratified with¬ 
out injury to the system. To conciliate the affections of 
their brethren to the government, was an object greatly 
desired by its friends. Disposed to respect what they 
deemed the errors of their opponents, where that respect 
could be manifested without a sacrifice of essential prin¬ 
ciples, they were anxious to annex to the Constitution those 
explanations and barriers against the possible encroach¬ 
ments of rulers on the liberties of the people which had 
been loudly demanded, however unfounded, in their judg¬ 
ments, might be the fears by which those demands were 
suggested. These dispositions were perhaps, in some meas¬ 
ure, stimulated to exertion by motives of the soundest 
policy. The formidable minorities in several of the con¬ 
ventions, which in the legislatures of some powerful States 
had become majorities, and the refusal of two States to 
complete the Union, were admonitions not to be disregarded, 
of the necessity of removing jealousies however misplaced, 
which operated on so large a portion of society. Among 
the most zealous friends of the Constitution, therefore, were 
found some of the first and warmest advocates for Amend¬ 
ments. 

“To meet the various ideas expressed by the several con¬ 
ventions ; to select from the mass of alterations which they 
had proposed those which might be adopted without strip¬ 
ping the government of its necessary powers; to condense 
them into a form and compass which would be acceptable to 
persons disposed to indulge the caprice, and to adopt the 
language of their particular States; were labors not easily 
to be accomplished. But the greatest difficulty to be sur- 


CONSTITUTION OF THE UNITED STATES 143 

mounted was, the disposition to make those alterations 
which would enfeeble and materially injure the future 
operations of the Government. At length, twelve articles in 
addition to an Amendment of the Constitution were assented 
to by two-thirds of both Houses of Congress, and proposed 
to the. legislatures of the several States. Although the 
necessity of these Amendments had been urged by the 
enemies of the Constitution and denied by its friends, they 
encountered scarcely any other opposition in the State legis¬ 
latures, than was given by the leaders of the Anti-Federal 
party. Admitting the articles to be good in themselves, 
and to be required by the occasion, it was contended that 
they were not sufficient for the security of liberty; and the 
apprehension was avowed that their adoption would quiet 
the fears of the people, and check the pursuit of those rad¬ 
ical alterations which would afford a safe and adequate 
protection to their rights. Viewing many of those altera¬ 
tions which were required as subversive of the fundamentals 
of the Government, and sincerely desirous of smoothing the 
way to a reunion of political sentiment by yielding in part 
to objections which had been pronounced important, the 
Federalists, almost universally, exerted their utmost powers 
in support of the particular Amendments which had been 
recommended. They were at length ratified by the legisla¬ 
tures of three-fourths of the States, and probably contribu¬ 
ted in some degree to diminish the jealousies which had 
been imbibed against the Federal Constitution.” 13 

Amendments That Failed. The two Amendments which 
were passed by Congress but failed of ratification by the 
requisite number of States and which were the first and 
second of the twelve submitted were as follows: 

(1) “ After the first enumeration required by the first 
Article of the Constitution, there shall be one Representa¬ 
tive for every thirty thousand, until the number shall 
amount to one hundred, after which the proportion shall 
be so regulated by Congress that there shall be not less 
than one hundred Representatives, nor less than one Rep¬ 
resentative for every forty thousand persons until the 
number of Representatives shall amount to two hundred; 
after which the proportion shall be so regulated by Con¬ 
gress that there shall not be less than two hundred Repre- 

13 Marshall's Life of Washington, vol. 5 , 207, 210. 


144 


CONSTITUTION OF THE UNITED STATES 


sentatives nor more than one Representative for every fifty 
thousand persons.” 

(2) “No law varying the compensation for the services 
of the Senators and Representatives shall take effect until 
an election of Representatives shall have intervened.” 

This important Amendment—the second one—was sug¬ 
gested by the conventions of New York, North Carolina, 
and Virginia, at the time they ratified the Constitution. It 
was proposed in this way to prevent Congress from increas¬ 
ing the compensation of its members at its mere will and 
pleasure. It was for a long time supposed that the Amend¬ 
ment had been ratified, but it was finally discovered that it 
had failed in one of the States by one vote; and thus there 
is nothing in the Constitution to prevent Congress from 
increasing the compensation of its members at will, which 
pleasure. It was for a long time supposed that the Amend¬ 
ment was a reasonable one and it was unfortunate that it 
was not inserted in the Constitution. Had it been the 
“salary grab” law of 1873 which wrecked the fortunes of 
so many eminent men would not have been passed, nor 
could Congress have increased the compensation of its 
members fifty per cent as it did a few years ago by a rising 
vote. 


CHAPTER X 

SCOPE AND HISTORY OF THE FIRST AMENDMENT 


§93. Present Form. “ Congress shall make no law 
respecting an establishment of religion, or prohibiting the 
free exercise thereof; or abridging the freedom of speech, 
or of the press; or the right of the people peaceably to 
assemble, and to petition the Government for a redress of 
grievances.* 9 

§ 94. Original and Subsequent Forms. We have already 
observed that it was determined by the House of Repre¬ 
sentatives to submit the Amendments as separate Articles 
and not insert them in their appropriate places in the orig¬ 
inal Constitution. 

To secure to the citizens of the United States religious 
freedom from governmental recognition, or interference 
was the purpose of this Amendment. The people of the 
United States have adopted Christianity as their religion, 
yet in their Constitution they have made no recognition of 
the principles of Christianity. 

Mr. Justice Miller, in Watson v. Jones, 1 on the subject of 
religious liberty, expressed the opinion of the Supreme 
Court and of the American people, as follows: 

“In this country the full and free right to entertain any 
religious belief, to practice any religious principle, and to 
teach any religious doctrine which does not violate the laws 
of morality and property, and which does not infringe per¬ 
sonal rights, is conceded to all.” 

The present form of the Amendment differs from the 
form in which it was introduced into the House of Repre¬ 
sentatives by Mr. Madison. As he had it, it read: 

“The civil rights of none shall be abridged on account of 
religious belief or worship, nor shall any National religion 

113 Wall. 679, 728. 


145 


146 


CONSTITUTION OF THE UNITED STATES 


be established, nor shall the full and equal rights of con¬ 
science be in any manner or on any pretext infringed. 

“The people shall not be deprived or abridged of their 
right to speak, to write, or to publish their sentiments; 
and the freedom of the press, as one of the great bulwarks 
of liberty, shall be inviolable. 

“The people shall not be restrained from peaceably 
assembling and consulting for their common good; nor 
from applying to the legislature by petitions, or remon¬ 
strances, for redress of their grievances.” 2 

It was Mr. Madison’s purpose to have this Amendment 
inserted between the third and fourth clauses in the ninth 
section of the first Article of the Constitution. 

The Amendment provoked much debate in the House, 
and was then referred to the Committee of One from each 
State, commonly called the Committee of Eleven. That 
Committee reported the Article back to the House to read 
as follows: 

“(1) No religion shall be established by law, nor shall 
the equal rights of conscience be infringed. 

“(2) The freedom of speech and of the press, and the 
right of the people peaceably to assemble and consult for 
their common good, and to apply to the Government for 
redress of grievances, shall not be infringed.” 3 

Amendments to the Amendment. While this report was 
under consideration in the House of Representatives, Mr. 
Livermore offered the following as an Amendment: 

“That Congress shall make no laws touching religion, or 
infringing the rights of conscience.” 

This motion passed by a vote of thirty-one to twenty. 4 

The subject was then referred to a Committee of Three, 
which, on the 24th of August, 1789, reported: 

“Congress shall make no law establishing religion, or 
prohibiting the free exercise thereof; nor shall the rights 
of conscience be infringed.” 

The report of the Committee in reference to the freedom 
of speech was as follows: 

2 1 Annals 457. 4 1 Annals 757-759. 

3 Thorpe’s Const. History of the U. S., vol. 2, 225. 


CONSTITUTION OF THE UNITED STATES 147 

“The freedom of speech and of the press, and of the 
right of the people to peaceably assemble and to apply to 
the Government for redress of grievances, shall not be 
infringed. ’ ’ 

This report was the subject of another debate, at the end 
of which the Amendment as reported by Mr. Madison to 
the House and by the Committee, to whom it had been 
referred, was taken up in the Senate and House, and con¬ 
sequently referred to a Committee of Conference which 
Committee reported it back as found in the Constitution. 

§ 95. Ratification. The first and second Amendments 
which had passed Congress and been submitted to the 
States for ratification, having been defeated by the States, 
this Amendment which was the third in the order sub¬ 
mitted became the first Amendment. 

The Amendment is naturally divisible into three clauses: 

(1) That Congress shall make no law respecting an estab¬ 
lishment of religion, or prohibiting the free exercise 
thereof. 

(2) That Congress shall make no law abridging the freedom 
of speech or of the press. 

(3) That Congress shall make no law abridging the right 
of the people peaceably to assemble and to petition the 
government for the redress of grievances. 

HISTORY OF FIRST CLAUSE 

§ 96. Virginia’s Established Church Bill. The origin of 
this clause is to be found in the history of the Episcopal 
Church in the State of Virginia. There was introduced in 
the General Assembly of that State in the year 1784, a bill, 
the purpose of which was to make that church the estab¬ 
lished religion of the State. The bill also provided for a 
general tax for the support of the clergy of that denomina¬ 
tion. Under the provisions of the tax each male person 
over sixteen years of age was to give ten pounds of tobacco, 
and one bushel of corn to the support of the church, and 
each minister should be entitled to receive fifteen hundred 
pounds of tobacco and sixteen bushels of corn per annum. 


148 


CONSTITUTION OF THE UNITED STATES 


As already stated, the introduction of this apparently 
harmless bill some years before the Convention which 
framed the Federal Constitution met, is the origin of this 
first great Amendment. The result of the introduction of 
the bill was to create a feeling outside the members of 
the denomination to which it referred that the church party 
sought to establish a permanent religion in the State, and 
this feeling survived even the long and bitter struggle of 
the Revolution. The question was revived after that great 
struggle and led to intense feeling. After the Revolution 
a resolution was passed by the Virginia legislature provid¬ 
ing “that Acts ought to pass for the incorporation of all 
societies of the Christian religion which might apply for 
the same.” The Episcopal Church was the only one to 
apply for incorporation under this resolution, and an Act 
was passed allowing it to do so. The Act provided that 
the “minister and vestry of each parish should be a body 
corporate, with power to purchase, have, and hold property, 
and to sue and be sued.” It also transferred to such cor¬ 
porations “all the glebes, lands, parsonages, churches, 
chapels, books, plate, ornaments, and everything that had 
been considered the property of the late establishment. 
It also empowered the churches to purchase, use, and enjoy 
other property, provided its income did not exceed a stated 
limitation. Vestries were to be elected once in three years 
by the people; but no person was to vote unless he was 
a member of the Episcopal Church contributing to its 
support.” 5 The tendency of this Act created great hos¬ 
tility, and public feeling became much aroused against it. 

Madison’s Memorial . It was in opposition to this bill 
that Madison wrote his famous memorial, of which an emi¬ 
nent historian has said: 

“It was one of the best compositions ever produced, even 
by his great mind. Transparent in style, moderate, yet 
firm in temper, graceful in proportion, strong in argument, 
it treats its subject with a power not to be resisted. It 
urged that the system of assessment was vicious, because 

s Howison’s History of Virginia vol. 2 , 294, 295. 


CONSTITUTION OF THE UNITED STATES 


149 


it gave civil Government control in religion; because it 
verged to a union of Church and State; because it violated 
equality, in requiring men to support that to which they 
might not have assented; because it made the civil magis¬ 
trate a judge in matters of faith; because it was unnecessary 
for the support of Christianity, which lives best upon the 
free love of her children; because it tended to produce indo¬ 
lence and vice, rather than purity and zeal.” 6 

The bill was finally defeated by a small majority, which 
was probably due to Mr. Madison’s memorial. 

Jefferson’s Act . It was while this controversy was being 
waged that Mr. Jefferson prepared, and the General Assem¬ 
bly of Virginia passed, what is known as an Act “For Es¬ 
tablishing Religious Freedom”, and which attracted the 
attention of the entire world. 

The Act, which consisted of two short sections (exclusive 
of the preamble) was as follows: 

“I. Be it enacted by the General Assembly, That no 
man shall be compelled to frequent or support any religious 
worship, place, or ministry whatsoever, nor shall be en¬ 
forced, restrained, molested, or burthened in his body or 
goods, nor shall otherwise suffer on account of his religious 
opinions or belief; but that all men shall be free to profess, 
and by argument to maintain, their opinion in matters of 
religion, and that the same shall in no wise diminish, en¬ 
large, or affect their civil capacities. 

“II. And though we well know that this assembly 
elected by the people for the ordinary purposes of legis¬ 
lation only, have no power to restrain the Acts of suc¬ 
ceeding assemblies, constituted with powers equal to our 
own, and that, therefore, to declare this act to be irrevocable 
would be of no effect in law; yet we are free to declare, and 
do declare, that the rights hereby asserted are of the natural 
rights of mankind, and that if any Act shall be hereafter 
passed to repeal the present, or to narrow its operation, 
such Act will be an infringement of natural right . 91 

No doubt this Act was the result of the feeling which had 
spread over the State in opposition to the attempt to create 
an established church. 

The influence of the established church in England was 

oHowison’s History of Virginia, vol. 2, 296. 


150 


CONSTITUTION OF THE UNITED STATES 


not appreciated by the people of Virginia and they became 
intensely antagonistic to it. It may have been that largely 
owing to the influence of Madison and Jefferson, public 
opinion went too far in the opposite direction. It at least 
resulted in the writing into the laws of Virginia the most 
powerful criticism of the established church which had 
ever been written. This Act was passed five years before 
Madison submitted the Amendment under consideration to 
the first Congress. The Amendment secured in the United 
States for all time a segregation of Church and State, and 
prevents any National recognition of a particular religious 
creed, while it does not diminish the glory nor lessen the 
virtues of Christianity. This inhibition, however, is against 
the United States and not against the individual States. 

§ 97. Comments on the Amendment. Jefferson . In 
1808, Mr. Jefferson wrote as follows of the effect of the 
Amendment: 

“I consider the Government of the United States as inter¬ 
dicted by the Constitution from intermeddling with religious 
institutions, their doctrines, discipline, or exercises. This 
results not only from the provision that no law shall be 
made respecting the establishment, or free exercise, of reli¬ 
gion, but from that also which reserves to the States the 
powers not delegated to the United States. Certainly no 
power to prescribe any religious exercise, or to assume 
authority in religious discipline, has been delegated to the 
general Government. It must then rest with the State, as 
far as it can be in any human authority. ’ ,7 

Judge Story said: 

“The real object of the Amendment was not to counte¬ 
nance, much less to advance, Mahometanism or Judaism or 
infidelity, by prostrating Christianity; but to exclude all 
rivalry among Christian sects, and to prevent any National 
ecclesiastical establishment which should give to a hier¬ 
archy the exclusive patronage of the National Government. 
It thus cuts off the means of religious persecution (the 
vice and pest of former ages), and of the subversion of the 
rights of conscience in matters of religion, which had been 

7 Ford’s Life of Jefferson, vol. 9, 174. 


CONSTITUTION OF THE UNITED STATES 


151 


trampled upon almost from the days of the Apostles to 
the present age.” 8 

The word “establishment” in this clause is said by an 
eminent writer on the Constitution to mean a National 
religion which is recognized and supported by the Gov¬ 
ernment. 9 

§ 98. Decisions Respecting the Establishment of Re¬ 
ligion. Construction of Amendment. In Permoli v. First 
Municipality, 10 Justice Catron said: 

“The Constitution makes no provision for protecting the 
citizens of the respective States in their religious liberties; 
this is left to the State Constitutions and laws: nor is there 
any inhibition imposed by the Constitution of the United 
States in this respect on the States. We must, therefore, 
look beyond the Constitution for the laws that are supposed 
to be violated; and on which our jurisdiction can be 
founded.” 

The provisions of this clause extend to the Territories 
as well as to the States and include the whole of the United 
States, so that Congress is prohibited from the exercise of 
such power anywhere within the jurisdiction of the United 
States. 

In Reynolds v. The United States, 11 it was held: 

“Congress cannot pass a law for the government of the 
Territories which shall prohibit the free exercise of religion. 
The first Amendment to the Constitution expressly forbids 
such legislation. Religious freedom is guaranteed every¬ 
where throughout the United States, so far as Congres¬ 
sional interference is concerned. The question to. be deter¬ 
mined is, whether the law now under consideration comes 
within this prohibition. 

“The word ‘religion’ is not defined in the Constitution. 
We must go elsewhere, therefore, to ascertain its meaning, 
and nowhere more appropriately, we think, than to the his¬ 
tory of the times in the midst of which the provision was 

s Story, The Constitution, vol. 2, pp. 631, 632 (5th ed.). 

9 Paschal, The Constitution, 254. 

303 How. 589-609. 11 98 IT. S. 145, 162. 


152 


CONSTITUTION OF THE UNITED STATES 

adopted. The precise point of the inquiry is, what is the 
religious freedom which has been guaranteed F’ 

Religion No Defense for Crime. The provisions of this 
clause will not be permitted to be pleaded as a defense for 
crime. In Davis v. Beason, 12 Mr. Justice Field said: 

“ Bigamy and polygamy are crimes by the laws of all 
civilized and Christian countries. They are crimes by the 
laws of the United States, and they are crimes by the laws 
of Idaho. They tend to destroy the purity of the marriage 
relation, to disturb the peace of families, to degrade woman 
and to debase man. Few crimes are more pernicious to 
the best interests of society and receive more general or 
more deserved punishment. To extend exemption from 
punishment for such crimes would be to shock the moral 
judgment of the community. To call their advocacy a tenet 
of religion is to offend the common sense of mankind. If 
they are crimes, then to teach, advise, and counsel their 
practice is to aid in their commission, and such teaching 
and counselling are themselves criminal and proper subjects 
of punishment, as aiding and abetting crime are in all other 
cases.’ ’ 

In the last analysis the Government and not the indi¬ 
vidual determines what constitutes religion or what will 
not be regarded as religion in any particular case brought 
before the courts. 

HISTORY OF SECOND CLAUSE 

The second clause of the Amendment provides that 1 ‘ Con¬ 
gress shall make no law abridging the freedom of speech 
or of the press.” 

§ 99. Liberty of Press. Few more interesting subjects 
are found in Constitutional history than freedom of speech 
or liberty of the press, but neither the Petition of Eight 
in 1628, nor the Bill of Eights in 1629, contain any reference 
to freedom of the press. 

Under the common law of England both freedom of 
speech and of the press were greatly curtailed, and it was 
considered one of the rights of the Crown to say what 
should be published. In pursuance of the kingly authority 

12 133 U. S. 333, 341. 








153 


CONSTITUTION OF THE UNITED STATES 


on this subject, persons were appointed by the Government 
to supervise what should be published, and if one pub¬ 
lished a book or even a paper without first getting consent 
of the officers—called censors, it was a felony. 13 

This feeling, however, greatly changed. After the Revo¬ 
lution of 1688, Parliament refused to grant a renewal of 
the right for certain persons to prescribe what should be 
published. 

The freedom of the press is generally considered to have 
begun in England in 1694, but that was far different from 
the common understanding of today concerning the mean¬ 
ing of “ freedom of the press”. Parliament then sat with 
its doors closed and its proceedings could not be published 
without authority. Sir Edward Peering published, in 1641, 
a volume of speeches which he had delivered as a member 
of Parliament, and for this he was expelled, and impris¬ 
oned in the Tower, and his book burned by the hangman. 14 

Censorship among Colonies. It was not until after the 
American Revolution that debates of Parliament were pub¬ 
lished. The feeling of security which had so long existed 
in England prevailed somewhat among the colonists. In 
1662, the general court of Massachusetts appointed two 
persons to be licensors of the press, and any person desir¬ 
ing to publish a book, or even a paper, thereafter was pro¬ 
hibited from doing so unless the licensors supervised the 
publication. The first publication of the laws of Massa¬ 
chusetts was in 1649. In 1682 the laws of Virginia were 
published by John Buckner for which he was arrested 
until the pleasure of the King could be ascertained in the 
matter, and the King issued an order forbidding the laws 
to be published again. 15 

The enlightened sentiment of the American people in the 
present generation would be shocked at these words of 
Governor Berkley of Virginia, spoken in 1671, in which he 
thanked “God that there is no free schools or printing: 

13 De Lolme’s Constitutional History of England, 259. 

14 May’s Const. History of England, 259. 

is Hildreth’s History of United States, vol. 1, 561. 


154 


CONSTITUTION OF THE UNITED STATES 


and hoped they should not have these hundred years; for 
learning hath brought disobedience, and heresies, and sects 
into the world, and printing hath divulged them and libels 
against the best government. God keep us from both.” 

Limitations . The clause does not prevent Congress from 
prohibiting obscene or lewd material from being carried 
in the mails. It was held in Ex parte Jackson : 16 

“In excluding various articles from the mail, the object 
of Congress has not been to interfere with the freedom of 
the press or of any other rights of the people; but to refuse 
its facilities for the distribution of matter deemed injurious 
to the public morals. ’ ’ 

And this doctrine was affirmed in almost the same words 
in an opinion by Chief Justice Fuller. 17 

It is not an abridgment of freedom of speech to prohibit 
an address in a public park; nor to prohibit profane lan¬ 
guage in certain places; nor to punish those who incite the 
employes of a railroad operated by a receiver to leave their 
employment in pursuance of an unlawful combination to 
prevent the operation of the road. 18 Nor is it an abridg¬ 
ment of the freedom of the press to make a contract not to 
publish a newspaper within certain territory. 

Neither does freedom of speech and of the press allow the 
publication of libels, blasphemous, or indecent articles, or 
other publications which are injurious to the public morals 
or to private character. 

HISTORY OF THIRD CLAUSE 

The third clause in the classification of this Amendment 
reads as follows: 

“Congress shall make no law abridging the right of the 
people peaceably to assemble and to petition the Govern¬ 
ment for a redress of grievances.” 

10 96 U. S. 727, 736. 

17 In re Rapier, Petitioner, In re Duprie, Petitioner, 143 U. S. 110-113; Hor¬ 
ner v. U. S., idem 207-213. 

is Thomas v. Cincinnati, N. 0. & T. P. Ry. Co., 62 Fed. Rep. 804. 



CONSTITUTION OF THE UNITED STATES 


155 


§ 100. Right to Assemble and Petition. It was about 
the year 1770, when public meetings became popular in Eng¬ 
land, and ten years later public resolutions and petitions 
were liberally circulated by the people, which exerted great 
influence upon Parliament. The right conferred by this 
clause is not construed to mean that the Government of the 
United States, or the individual States, have surrendered 
their inherent right to control assemblages of the people in 
the interest of good order and society. 

The clause permits people peaceably to assemble and to 
petition the government for a redress of grievances. First, 
they are permitted to assemble peaceably; second, to peti¬ 
tion the government for a redress of their wrongs. And 
that is the extent to which the language of the clause can 
be carried. 

* 

Mr. Tucker, in his work on the Constitution, says: 

“All that this clause does is to protect the petitioners in 
their right to get up the petition, circulate it for signa¬ 
tures, and have it presented. 19 

The clause is not a recognition of a new right, for the 
right of the people to do what the clause permits them to 
do existed long before the Constitution was made. The 
regulation and control of the privilege which was granted 
by this clause has always been, and still is, very largely 
under control of the State governments. In United States 
v. Cruikshank, 20 Chief Justice Waite said: 

“This Amendment was not intended to limit the powers 
of State Governments in respect to their own citizens, but 
to operate upon the National Government alone. The right 
was not created by the Amendment; neither was its con¬ 
tinuance guaranteed, except as against congressional inter¬ 
ference. For their protection in this enjoyment, therefore, 
the people must look to the States. The power for that pur¬ 
pose was originally placed there, and it has never been sur¬ 
rendered to the United States. The right of the people 
peaceably to assemble for the purpose of petitioning Con¬ 
gress for a redress of grievances, or for anything else con- 

19 2 Tucker, The Constitution, 671. 20 92 U. S. 542, 552. 













156 


CONSTITUTION OF THE UNITED STATES 


nected with the powers or the duties of the National Gov¬ 
ernment, is an attribute of National citizenship, and, as 
such, under the protection of, and guaranteed by, the United 
States. The very idea of a government, republican in form, 
implies a right on the part of its citizens to meet peaceably 
for consultation in respect to public affairs and to petition 
for a redress of grievances. ’ ’ 



CHAPTER XI 


SCOPE OF SECOND, THIRD, AND FOURTH 

AMENDMENTS 

SECOND AMENDMENT 

“A well-regulated Militia, being necessary to the security 
of a free State, the right of the people to keep and bear 
Arms, shall not be infringed.” 

§ 101. Similar Provisions in State Constitutions. At 

the time the Constitution was adopted there were at least 
two of the State Constitutions which contained provisions 
similar to this Amendment. The Constitution of Maryland 
provided “A well-regulated militia is the proper and 
natural defense of a free government,” while the Consti¬ 
tution of Virginia contained the following provision: “A 
well-regulated militia, composed of the body of the people 
trained to arms, is the proper, natural, and safe defense of 
a free State.” 

Mr. Madison suggested that the Amendment should be 
in the following form: 

“The right of the people to keep and bear arms shall 
not be infringed; a well-armed and well-regulated militia 
being the best security of a free country; but no person 
religiously scrupulous of bearing arms shall be compelled 
to render military service in person.” 1 

The Committee of Eleven in Congress changed this to 
read: 

“A well-regulated militia, composed of the body of the 
people, being the best security of a free State, the right of 
the people to keep and bear arms shall not be infringed; 
but no person religiously scrupulous shall be compelled to 
bear arms.” 2 

1 Annals 451. 

2 Thorpe’s Const. History of the U. S., vol. 2, 225. 


157 




158 


CONSTITUTION OF THE UNITED STATES 


Later the select Committee of Three, to which the matter 
had been referred, reported the Article hack to Congress 
as it had been submitted by the Committee of Eleven, but 
this not being entirely satisfactory, Congress changed it 
to its present form. 

§ 102. Court Decisions Regarding Scope. The Supreme 
Court of the United States in the case of United States v. 
Cruikshank, 3 said of this Amendment: 

“The right of the people to keep and bear arms is not a 
right granted by the Constitution. Neither is it in any 
manner dependent upon that instrument for its existence. 
The Second Amendment declares that this right shall not 
be infringed, but this means no more than that it shall not be 
infringed by Congress. This Amendment is one of those 
that have no other effect than to restrict the powers of the 
National Government, and not those of the States.” 

The court at a later date held: 

‘ ‘ The right voluntarily to associate together as a mili¬ 
tary company or organization, or to drill or parade with 
arms, without, and independent of, an Act of Congress or 
law of the State authorizing the same, is not an attribute 
of National citizenship. Military organization, and mili¬ 
tary drill and parade under arms are subjects especially 
under the control of the government of every country. They 
cannot be claimed as a right independent of law. Under 
our political system they are subject to the regulation and 
control of the State and Federal Governments, acting in 
due regard to their respective prerogatives and powers. 
The Constitution and laws of the United States will be 
searched in vain for any support to the view that these 
rights are privileges and immunities of citizens of the 
United States independent of some specific legislation on 
the subject. 

“It cannot be successfully questioned that the State 
governments, unless restrained by their own Constitutions, 
have the power to regulate or prohibit associations and 
meetings of the people, except in the case of peaceable 
assemblies to perform the duties or exercise the privileges 
of citizens of the United States; and have also the power 
to control and regulate the organization, drilling, and parad- 

3 92 U. S. 542, 553. 




CONSTITUTION OF THE UNITED STATES 159 

ing of military bodies and associations, except when such 
bodies or associations are authorized by the militia laws 
of the United States. The exercise of this power by the 
States is necessary to the public peace, safety, and good 
order. To deny the power would be to deny the right of 
the State to disperse assemblages organized for sedition and 
treason, and the right to suppress armed mobs bent on riot 
and rapine/’ 4 

Meaning of Arms. As to what kind of arms are con¬ 
templated by the Amendment was discussed in England v. 
State, 5 in which the Supreme Court of Texas said: 

“Arms of what kind! Certainly such as are useful and 
proper to an armed militia. The deadly weapons spoken of 
in the State statutes are pistols, dirks, etc. Can it be under¬ 
stood that these were contemplated by the framers of our 
Bill of Rights! ... To refer the deadly devices and 
instruments called in the statute ‘deadly weapons’, to the 
proper or necessary arms of a ‘well-regulated militia’ is 
simply ridiculous. No kind of travesty, however subtle or 
ingenuous, could so misconstrue this provision of the Con¬ 
stitution of the United States as to make it cover and pro¬ 
tect that pernicious vice from which so many murders, 
assassinations, and deadly assaults have sprung, and which 
it was doubtless the intention of the legislature to punish 
and prohibit. The word ‘arms’ in the connection we find 
it in the Constitution of the United States, refers to the 
arms of a militiaman or soldier, and the word is used in its 
military sense.” 

It was held by the Supreme Court of West Virginia in 
State v. Workman, 6 that this Amendment should be con¬ 
strued with reference to the provisions of the common law 
upon the subject as they existed at the time the Amend¬ 
ment was adopted, and that the “arms” referred to in the 
Amendment, referred to the weapons of warfare used by 
the militia, such as swords, guns, rifles, and muskets—arms 
to be used in defending the State and civil liberty—and not 
to pistols, etc.” 

4 116 U. S. 252, 267. 6 35 West Va. 367, 372. 

s 35 Texas 473, 474, 476. 



ICO 


CONSTITUTION OF THE UNITED STATES 


It is not a violation of this Amendment to prohibit the 
carrying of concealed weapons. 7 

THIRD AMENDMENT 

§ 103. Source of Amendment. This Amendment is in 
the following language: 

“No Soldier shall, in time of peace, be quartered in any 
house, without the consent of the Owner, nor in time of war, 
but in a manner to be prescribed by law.” 

The origin of this Amendment is to be found in the 
Petition of Right presented to Charles I. on the 2nd of June, 
1628, by the Lords and Commons of Parliament. That 
memorable petition, among other complaints, contained 
the following: 

“Whereas of late, great Companies of Soldiers and Mari¬ 
ners have been dispersed into divers Counties of the Realm, 
and the Inhabitants, against their Wills, have been com¬ 
pelled to receive them into their Houses, and there to suffer 
them to sojourn, against the Laws and Customs of this 
Realm, and to the great Grievance and Vexation of the 
People. ” s 

Mr. Madison’s First Amendment contained a clause from 
which this Amendment was taken. There was some debate 
on it in the House of Representatives and Mr. Sumpter 
moved to amend so that the Amendment would read, “No 
soldier shall be quartered in any house without the consent 
of the Owner”—omitting the words “in time of peace”. 
The motion was lost. It was then amended so as to read, 
“No soldier shall, in time of peace, be quartered in any 
House, without the consent of the Owner, nor in time of 
War but by a civil magistrate in a manner to be prescribed 
by law. ’ ’ 

§ 104. Purpose of Amendment. The purpose of this 
Amendment was to confer upon the civil authorities the 
power of controlling the quartering of soldiers in a man’s 

7 Robertson v. Baldwin, 165 U. S. 275, 283. 

8 2 Cobbett’s Parliamentary History, vol. 8, 148, ed. 1751. 



CONSTITUTION OF THE UNITED STATES 


161 


house even in the time of war, but this Amendment was 
also defeated. 

The word “soldier” in the Amendment refers to and 
includes the militia when in actual service, the same as it 
does a soldier in the regular army. The object of the 
Amendment is to secure to every man the privacy and 
seclusion of his home. 

No soldier can be quartered in any man’s home without 
his consent in times of peace, and in time of war only in a 
manner prescribed by law. 

FOURTH AMENDMENT 

§ 105. Source of Amendment. This celebrated Amend¬ 
ment is in the following language: 

“The right of the people to be secure in their persons, 
houses, papers, and effects, against unreasonable searches 
and seizures, shall not be violated, and no warrants shall 
issue, but upon probable cause, supported by oath or 
affirmation, and particularly describing the place to be 
searched, and the persons or things to be seized.’’ 

As introduced by Mr. Madison, this Amendment read: 

“The rights of the people to be secured in their persons, 
their houses, their papers, and their other property, from 
all unreasonable searches and seizures, shall not be vio¬ 
lated by warrants issued without probable cause, supported 
by oath or affirmation, or not particularly describing the 
places to be searched, or the persons or things to be seized.” 9 

This Amendment was a part of Mr. Madison’s first 
Amendment. It was suggested by Mr. Gerry that the first- 
part of the Amendment be made to read, “The right of the 
people to be secure in their persons, houses, papers, and 
effects against unreasonable seizure and searches”, and this 
suggestion was adopted with some slight changes. 

The origin of the Amendment undoubtedly carries us 
back in English history to the reign of Charles II. 

It was the practice at that time in England to issue war¬ 
rants for the apprehension of persons without their names 

0 1 Annals 452, 



162 CONSTITUTION OF THE UNITED STATES 

being inserted in tlie warrants, and it was also the practice ; 
to search their homes for private papers, so that evidence^ 
might be obtained to support imaginary charges. It was i 
not until the latter part of the eighteenth century when 
the legality of such warrants was contested in the courts. 
In the case of Money v. Leach, 10 it was held by the Court of 
King’s Bench that a warrant must issue upon the oath of 
an accuser, and set forth the name of the supposed offender, 
and the time, place, and nature of the offense with reason¬ 
able certainty. The same practice prevailed in the Ameri¬ 
can colonies as prevailed in England. The public feeling 
in both countries became intensely aroused against it. 

In 1761, there occurred a trial in Boston which proved 
to be of National interest on both sides of the ocean. The 
question on the trial was the legality of such warrant. 
James Otis, who was a native of Massachusetts at the time 
of the trial, held the position of Advocate General of the 
Crown, resigned and acted as counsel in resisting the arrest. 
Otis’ efforts in the case produced an effect which is still 
felt by the American people. Such writs were never there¬ 
after served by authority of the court. 

§ 106. Unreasonable Searches and Seizures. The searches 
and seizures against which the people are guaranteed 
security in their persons, houses, papers, and effects, must 
be unreasonable. This presents a purely legal question. 
An Act of Congress authorized the Courts of the United 
States in certain cases to require the defendant to produce 
his private books, invoices, and papers in court or else the 
averments made by the district attorney would be taken to 
be confessed as true by the defendant. In the celebrated 
case of Boyd v. United States, 11 this was held to be in 
conflict with the Fourth Amendment. 

It was held in Hale v. Hengle, 12 that a compulsory pro¬ 
duction of private papers to be used in evidence against 
the owner is an unreasonable search and seizure and is for¬ 
bidden by the Fourth Amendment. 

10 3 Burrows 1742. 12 201 U. S. 43. 

n 116 U. S. 616. 






CONSTITUTION OF THE UNITED STATES 163 

§ 107. The Warrant. The warrant is the authority 
which the officer has for making the search and seizure, 
but it must not be issued until there is filed with the officer, 
whose duty it is to issue it, an affidavit or affirmation, which 
makes out a case of probable cause against the party men¬ 
tioned therein. Said Mr. Justice Bradley: 13 

‘ ‘ The probable cause referred to in the Amendment must 
be submitted to the committing magistrate himself, and 
not merely to an official accuser, so that the magistrate may 
exercise his judgment on the sufficiency of the ground for 
believing the accused person guilty; and this ground must 
amount to a probable cause of belief or suspicion of the 
accused person's guilt." 

§ 108. Inspection of Books. In United States v. Three 
Tons of Coal, 14 the court said: 

“It is no infringement upon personal or Constitutional 
rights of distillers to require that books and papers used 
and kept by them in their business, shall be produced for 
inspection by the attorneys for the Government. Such 
books and papers are not such private property as exempts 
them from search and seizure, nor are they protected by the 
rules against obtaining them to be used as evidence. ’ ’ 

109. Congressional Inquiries. In reference to the 
power exercised in Congressional inquiries under this 

Amendment, in the case of Chapman, 15 the court said: 

“Questions which did not seek to ascertain any facts 
as to the conduct, methods, extent, or details of the business 
of the firm in question, but only whether a firm, confessedly 
engaged in buying and selling stocks, and the particular 
stock named, was employed by any Senator to buy or sell 
for him any of their stock, whose market price might be 
affected by the Senate's action, were competent. These 
questions cannot be regarded as amounting to an unreason¬ 
able search into the private affairs of the witness simply 
because he may have been in some degree connected with 
the alleged transactions, and as investigations of this sort 
are within the power of either of the two Houses and cannot 
be defeated on purely sentimental grounds." 

is 3 Woods 502, 503. is 166 U. S. 661, 669. 

14 6 Biss., 379. 







EXAMINATION PAPER 



CONSTITUTION OF THE 
UNITED STATES 

PART II 


Read Carefully: Place your name and full address at the head of the 
paper. Any cheap, light paper like the sample previously sent you may be 
used. Do not crowd your work, but arrange it neatly and legibly. Do not 
copy the answers from the Instruction Paper; use your own words, so that we 
may he sure you understand the subject. 


1. What is a treaty? 

2. What is an alliance? 

3. What is a bill of credit? 

4. What is meant by the obligation of a contract? 

5. Can Congress or any State pass laws impairing the obliga¬ 
tion of contracts? 

6. Can a State confer titles of nobility? Can a State keep 
troops in time of peace? 

7. What are imports? What are exports? 

8. What is meant by the term “invasion”? 

9. How is the President of the United States elected? 

10. What are the qualifications of the President? 

11. What is the order of succession to the presidency in case 
of vacancy in that office? 

12. What is the President’s military power? His treaty power? 
His power of appointment? 

13. State some of the President’s important powers not men¬ 
tioned in Question 12. 

14. Is the President subject to impeachment? If so, by what 
body? 

15. What body can try the President if he is impeached? Has 
any President ever been impeached? If so, who? 

16. By what authority is the Supreme Court of the United 
States constituted? Who appoints the members of the Court? 





CONSTITUTION OF THE UNITED STATES 


17. For what term are they appointed? 

18. To what does the jurisdiction of the Supreme Court extend? 

19. What is the meaning of the word “trial” as used in the Con¬ 
stitution? 

20. What crime does the Constitution define? Give the defini¬ 
tion. 

21. What are some of the privileges and immunities of citizens 
of the United States? 

22. Who is a fugitive from justice? 

23. How can territory be acquired by the United States? 

24. How can the United States govern territory annexed by it, 
but which is not incorporated as a part of the United States? 

25. What is a republican form of government? 

26. What guarantee does the Constitution make on this subject ? 

27. How can the Constitution be amended? 

28. How many amendments have been made to it? 

29. Is the signature of the President necessary to an amend¬ 
ment? Discuss. 

30. Who proposed the first ten amendments? 

31. What are these amendments usually called? 

32. How many amendments passed by the first Congress failed 
of ratification by the States? 

33. What is the Supreme Law as laid down by the Constitution? 

34. Discuss the origin of the clause in the first amendment 
which relates to freedom of religious belief. 

After completing the work, add and sign the following statement: 

I hereby certify that the above work is entirely my own. 

(Signed) 













CONSTITUTION 

of the 

UNITED STATES 

PART III 


INSTRUCTION PAPER 

PREPARED BY 

DAVID K. WATSON, A.B., LL.B., LL.D. 

Former Attorney General of Ohio and Member 
of Congress. Author of “Watson on the 
Constitution of the United States” 




AMERICAN SCHOOL OF CORRESPONDENCE 

\\ 

CHICAGO ILLINOIS 

U. S. At 










Copyright 1912 by 

American School or Correspondence 


Entered at Stationers’ Hall, Eondon 
All Rights Reserved 



CONSTITUTION OF THE 
UNITED STATES 


PART III 

CHAPTER XII 

FIFTH AMENDMENT 

This Amendment, as found in the Constitution, reads: 

“No person shall be held to answer for a capital, or other¬ 
wise infamous crime, unless on a presentment or indictment 
of a Grand Jury, except in cases arising in the land or naval 
forces, or in the Militia, when in actual service in time of 
War or public danger; nor shall any person be subject for 
the same offense to be twice put in jeopardy of life or limb; 
nor shall be compelled in any criminal case to be a witness 
against himself, nor be deprived of life, liberty, or property, 
without due process of law; nor shall private property be 
taken for public use, without just compensation.” 

This was the most important Amendment which Mr. 
Madison submitted to Congress. As introduced by him it 
did not appear in its present form, but was a part of his 
Seventh and Fourth Amendments. Congress changed it 
to its present reading. For convenience it may be sepa¬ 
rated into five classifications. 

First. “No person shall be held to answer for a capital, 
or otherwise infamous crime, unless on a presentment or 
indictment by a grand jury, except in cases arising in the 
land or naval forces, or in the militia, when in actual service 
in time of war or public danger. ’ 7 

Second. “Nor shall any person be subject for the same 
offense to be twice put in jeopardy of life or limb.” 

Copyright, 1912, by American School of Correspondence. 


165 




ICG CONSTITUTION OF THE UNITED STATES 

Third. “Nor shall any person be compelled in any crimi¬ 
nal case to be a witness against himself. ’’ 

Fourth. “Nor shall any person be deprived of life, lib¬ 
erty, or property, without due process of law.” 

Fifth. “Nor shall private property be taken for public 
use, without just compensation.” 

§ 110, First Clause. “No person shall be held to answer 
for a capital, or otherwise infamous crime, unless on a pre¬ 
sentment or indictment of a Grand Jury, except in cases 
arising in the land or naval forces, or in the Militia, when 
in actual service in time of War or public danger.” 

When the Massachusetts Convention was considering the 
adoption of the Constitution it suggested the following 
Amendment: 

“That no person shall be tried for any crime, by which 
he may incur an infamous punishment, or loss of life, until 
he be first indicted by a grand jury, except in such cases as 
may arise in the government and regulation of the land and 
naval forces.” 

And it was from this suggestion that the present clause 
was evolved. 

It has been held that the words “no person” are broad 
enough to include aliens of every nationality, and that they 
are entitled to the benefit of this provision. 1 But the pro¬ 
vision does not apply to persons who are tried by a consular 
court in a foreign country, and such persons are not entitled 
to the protection of the Amendment. Thus, it was held 
that: 

“The guarantees which the Constitution affords against 
accusation of capital or infamous crimes except by indict¬ 
ment or presentment by a grand jury, and for an impartial 
trial by a jury when thus accused, apply only to citizens 
and others within the United States, or who are brought 
there for trial for alleged offenses committed elsewhere, 
and not to residents or temporary sojourners abroad.” 2 

1 Li Sing v. United States, ISO U. S. 495. 

2 In re Ross, 140 U. S. 453, 404. 


CONSTITUTION OF THE UNITED STATES 


167 


What Are Capital or Infamous Crimes. A capital crime 
is one the punishment of which is death; while an infamous 
crime is one the punishment of which is imprisonment and 
hard labor. Thus in Ex parte Wilson, 3 it was said that a 
crime punishable by imprisonment for a number of years 
at hard labor was an infamous crime within the provisions 
of the Fifth Amendment. 

Presentment or Indictment by Grand Jury. A grand 
jury is a body of men selected according* to the forms of 
law for the purpose of inquiring what offenses, if any, have 
been committed within the jurisdiction of the court. The 
presentment or indictment referred to in the Amendment is 
the formal instrument returned by the grand jury against 
those persons whom they have accused of committing 
offenses. The function of the grand jury is to inquire 
whether a crime has been committed. If the requisite num¬ 
ber of the members of such body are of the opinion that a 
crime has been committed, they then charge the person with 
the crime and return it to the court, and that charge is the 
indictment or presentment. The exception in the clause 
relating to land or naval forces or the Militia, while in 
actual service in time of War, was inserted in order to 
avoid any conflict between the different authorities, such 
as civil, military, or naval. Cases arising in the land or 
naval forces of the Government, or in the militia are largely 
subject to be tried by courts within those various depart¬ 
ments under special rules. It has been held that the term 
“When in actual service in time of War or public danger”, 
does not apply to soldiers in the Army of the United States, 
but only to the Militia. 4 

§111. Second Clause. “Nor shall any Person be Sub¬ 
ject for the same Offense to be Twice put in Jeopardy of 
Life or Limb.” 

This important provision is probably found in the Con¬ 
stitution of every State in the Union. At the time the 
Constitution was adopted the New Hampshire Constitu¬ 
tion provided “No subject shall be liable to be tried after 

4 Jolmson v. Sa.yre, 158 U. S. 10J, 115. 


s 114 U. S. 418. 


1C8 


CONSTITUTION 


OF THE UNITED STATES 


an acquittal for the same crime or offense.” The pro¬ 
vision is of very ancient origin, and is discussed by Bracton, 
who wrote as early as the thirteenth century. The signif¬ 
icance of the clause turns on the meaning of the word 
“jeopardy”. This term has been defined to mean the 
situation of a prisoner when a trial jury is sworn and 
impaneled to try his case on a valid indictment, and the 
jury has been charged with his deliverance. It has also 
been held to mean the peril in which a person has been put, 
when he lias been regularly charged with a crime before a 
tribunal properly organized and competent to try him. 5 
One is put in jeopardy whenever he is put on trial before 
a court and jury having authority to try him. 0 The pro¬ 
vision of the Constitution under consideration prevents a 
repetition of one being put in jeopardy. In other words, 
it prevents one being put twice in jeopardy. It is not 
against a second punishment that the clause operates, so 
that whether the defendant is convicted or acquitted, he is 
put in jeopardy at the first trial. 7 

What Is Not a Second Jeopardy. Where one is acquitted 
of the commission of a crime by a court or jury which did 
not have jurisdiction to try him, this does not amount to 
being twice put in jeopardy. In other words, jurisdiction 
is essentia] to jeopardy. So if in the trial of one charged 
with crime the jury is discharged by the judge for reasons 
satisfactory to him, and the defendant is afterwards tried 
by another jury, this does not amount to being twice in 
jeopardy. It was held in Gavieres v. United States, 8 that 
where a person was convicted and punished for the viola¬ 
tion of an ordinance, and was afterwards tried under a 
different ordinance for insulting an officer, though the two 
charges were based on the same conduct, the defendant was 
not placed twice in jeopardy by his second trial. Again, 
where a jury had been considering a case for forty hours 
and reported to the court that they were not able to agree 
on a verdict, and were discharged by the judge against the 

5 IT. S. v. Mays and Overholt, 1 Id. 763. ?U. S. v. Ball, 163 U. S. 662. 

6 Ex parte Chas. Fenton, 77 Cal. 133. s 220 U. S. 329, 


CONSTITUTION OF THE UNITED STATES 


169 


consent of the defendant, it was held that it was competent 
for the presiding judge, in the exercise of his discretion, to 
discharge the jury and that the defendant could be tried 
again. 9 The rule is that courts have authority to discharge 
a jury from giving a verdict whenever in the sound exercise 
of their discretion there is a manifest necessity for the act, 
or the ends of public justice will otherwise be defeated, and 
that under such circumstances the defendant is not twice 
put in jeopardy. 10 

§112. Third Clause. “Nor shall any person be com¬ 
pelled in any criminal case to be a witness against himself.” 

Speaking of this provision of the Amendment, Mr. Justice 
Brown said, in Brown v. Walker: 11 

“It had its origin in a protest against the inquisitorial 
and manifestly unjust methods of interrogating accused 
persons, which had long obtained in the Continental system, 
and, until the expulsion of the Stuarts from the British 
throne in 1688, and the erection of additional barriers for 
the protection of the people against the exercise of arbi¬ 
trated power, was not uncommon even in England. . . . 

The change in English criminal procedure in that particu¬ 
lar, seems to be founded upon no statute and no judicial 
opinion, but upon a general and silent acquiescence of the 
courts in a popular demand. But, however adopted, it has 
become firmly imbedded in English, as well as in American 
jurisprudence. So deeply did the iniquities of the ancient 
system impress themselves upon the minds of the American 
colonists, that the States, with one accord, made a denial 
of the right to question an accused person a part of their 
fundamental law, so that a maxim, which in England was a 
mere rule of evidence, became clothed in this country with 
the impregnability of a Constitutional enactment. ’ 9 

This clause was in the Constitutions of several of the 
States, viz, North Carolina, Pennsylvania, Virginia, Massa¬ 
chusetts, and New Hampshire, when the Constitution was 
made. It is now found in the Constitution of each State 
in the Union, except Iowa and New Jersey. In those States 
it is held to be a part of the existing law. It will be 

o Logan v. U. S., 144 TJ. S. 263. n 161 U. S. 591, 596, 597. 

io Thompson v. U. S., 155 U. S. 271. 


170 


CONSTITUTION OF THE UNITED STATES 


observed that the provision is limited to “criminal cases.’’ 
This term was defined in United States v. Three Tons of 
Coal 12 to mean a case in which the punishment for crime 
is sought to be visited upon the person of the defendant in 
the ordinary course of criminal prosecution. 

Witnesses before Grand Jury. The privilege also ex¬ 
tends to witnesses before a grand jury, or an investiga¬ 
tion. Said the Supreme Court, in Counselman v. Hitch¬ 
cock : 13 

“It is impossible that the meaning of the Constitutional 
provision can only be, that a person shall not be compelled 
to be a witness against himself in a criminal prosecu¬ 
tion against himself. It would doubtless cover such cases, 
but it is not limited to them. The object was to insure 
that a person should not be compelled, when acting as 
a witness in any investigation, to give testimony which 
might tend to show that he had himself committed a crime. 
The privilege is limited to criminal matters, but it is as 
broad as the mischief against which it seeks to guard. It is 
entirely consistent with this language of the Constitution 
that the privilege of not being a witness against himself 
is to be exercised in a proceeding before a grand jury.” 

When Defendant Cannot Invoke Privilege . The Supreme 
Court, in Brown v. Walker, 14 laid down in substance the 
following general rules: 

First: If the witness elects to waive his privilege, as 
he may doubtless do, and discloses his criminal connections, 
he cannot stop, but must go on and make a full disclosure. 

Second: If a prosecution for a crime, concerning which 
the witness is questioned, is barred by the statute of limita¬ 
tions, he will be compelled to answer. 

Third: If the answer of the witness may have a tend¬ 
ency to disgrace him, or bring him into disrepute, the great 
weight of authority is that he may be compelled to answer 
if the proposed evidence be material to the issue being tried, 
but if the answer of the witness can have no effect upon the 
case, except to impair his credibility, he may fall back upon 

12 6 Biss. 379, 393. 14 161 U. S. 591, 597, 598, 

13 142 U. S. 547-562, 563. 


CONSTITUTION OF THE UNITED STATES 


171 


his privilege. Yet he is still bound to answer if his answer 
will not show his infamy, but only tend to disgrace him. 

Fourth: It follows from the above propositions that, if 
a witness has received a pardon, he cannot any longer set 
up his privilege, since he stands with respect to such 
offense as if it had never been committed. 

This decision established the rule that if the testimony 
of a witness be material to the case he must answer, though 
to do so tended to disgrace him; but if his answer would 
have no effect on the case but only weaken his testimony, 
the witness can plead his privilege and need not answer. 

Witness Against Himself. A singular incident arose in 
the Matter of Moran, 15 where the petitioner was obliged to 
stand in the presence of the jury and then walk in their 
presence, and during the recess of the trial the jury was 
stationed so as to observe the personal appearance of the 
petitioner. The Supreme Court of the United States 
declined to pass upon the question whether this amounted 
to compelling the petitioner to be a witness against himself. 

§ 113. Fourth Clause. The next classification of this 
Amendment to which attention will be called is the one 
which provides that “no person shall be deprived of life, 
liberty, or property without due process of law.” This is 
probably the most important clause of the Amendment, 
because it relates to life, and liberty, and property. The 
limitation contained in this clause is that no one is to be 
deprived of his life, his liberty, or his property without due 
process of law is exercised in his behalf. 

Hue Process of Law. There is no fixed and settled defini¬ 
tion of “Due Process of Law”. Mr. Justice Holmes, in 
Moyer v. Peabody, 16 said: 

4 4 The term depends on circumstances and varies with the 
subject-matter and necessities of the situation.” 

Much has been written upon the subject and the libraries 
abound in essays and volumes concerning it, hence no gen¬ 
eral discussion of the question will be entered upon here, 


is 203 U. S. 97. 


i6 212 U. S. 78-84. 


172 


CONSTITUTION OF THE UNITED STATES 


but the reader and the student are referred to the special 
works upon the subject. 

Deprivation of Life. Commenting upon these words as 
found in the Amendment under consideration, it was said, 
in Hopt v. Utah: 17 

“In felony cases it is not within the power of the accused, 
or of his counsel, to dispense with the statutory requirement 
as to his personal presence at the trial. The public has an 
interest in his life and his liberty. Neither can be lawfully 
taken except in the mode prescribed by law. That which 
the law makes essential in the proceedings, involving the 
deprivation of life or liberty, cannot be dispensed with, or 
affected by the consent of the accused, much less by his mere 
failure when on trial and in custody to object to author¬ 
ized methods. The great end of punishment is not the expia¬ 
tion or atonement, but the prevention of future offenses of 
the same kind. If the defendant be deprived of his life 
or liberty without being present, such deprivation would be 
without that due process of law required by the Con¬ 
stitution.’’ 

So Chief Justice Fuller, in Ball v. United States, 18 in 
discussing why the defendant should be present when the 
court pronounced sentence upon him, said: 

“That the defendant might be identified by the court as 
the real party adjudged guilty; that he might have a chance 
to plead a pardon, or move in arrest of judgment; that he 
might have an opportunity to say why judgment should not 
be given against him; and that the example of being brought 
up for the animadversion of the court, and the open denun¬ 
ciation of punishment, might tend to deter others from the 
commission of like offenses. . . . The accused is entitled to 
be informed of the nature and cause of the accusation 
against him, and jurisdiction should not be exercised when 
there is doubt as to the authority to exercise it. All the 
essential ingredients of the offense charged must be stated 
in the indictment, embracing with reasonable certainty the 
particulars of time and place, that the accused may be en¬ 
abled to prepare his defense and avail himself of his acquit¬ 
tal or conviction against any further prosecution for the 
same cause.” 


17 110 U. S. 574-579. 


18 140 U. S. 131, 136. 


CONSTITUTION OF THE UNITED STATES 


173 


Deprivation of Liberty . Liberty is a general term, and 
society lias taken various views concerning its meaning. 
The Supreme Court, in Crowley v. Christiensen, 19 said: 

“Liberty, the greatest of all rights, is not unrestricted 
license to act according to one’s own will. It is only free¬ 
dom from restraint under conditions essential to the equal 
enjoyment of the same rights by others. It is then liberty 
regulated by law. The right to acquire, enjoy, and dispose 
of property is one of the inalienable rights of man. But 
this declaration is not to preclude legislation in respect of 
the acquisition, enjoyment, and disposition of property. 
What contracts respecting its acquisition and disposition 
shall be valid and not void or voidable, when they shall be 
in writing, and when they may be made orally, and by what 
instruments it may be conveyed or mortgaged, are subjects 
of constant legislation. And as to the enjoyment of prop¬ 
erty, the rule is general that it must be accompanied with 
such limitations as will not impair the equal enjoyment by 
others of their property.” 

So it was said in the later case of Jacobson v. Massachu¬ 
setts : 20 

“The liberty secured by the Constitution of the United 
States to every person within its jurisdiction does not 
import an absolute right in each person to be, at all times 
and in all circumstances, wholly free from restraint. There 
are manifold restraints to which every person is necessarily 
subject for the common good. On any other basis organized 
society could not exist with safety to its own members. 
Society based on the rule that each one is a law unto him¬ 
self would soon be confronted with disorder and anarchy. 
Real liberty for all could not exist under the operation of a 
principle which recognizes the right of each individual per¬ 
son to use his own, whether in respect of his person or his 
property, regardless of the injury that may be done to 
others.” 

§ 114. Fifth Clause. The fifth classification into which 
we have divided the Amendment provides that “private 
property shall not be taken for public use without just 
compensation. ’ ’ 

19 137 U. S. 86. 


20 197 U. S. 11, 26. 


174 


CONSTITUTION OF THE UNITED STATES 


In the Constitutional Convention, Mr. Gouverneur Morris 
in one of his brilliant speeches, said that: 

4 4 Property was the main object of society. The savage 
state was more favorable to liberty than the civilized. It 
was preferred by all men who have not acquired a taste for 
property. It was only renounced for the sake of property 
which could only be secured by the restraints of regular 
government. ’ ,21 

The w T ord property comes from the Latin proprius, mean¬ 
ing one’s own. Different definitions have been given of the 
word. When applied to lands it has been held to mean 
every kind of title. 22 Blackstone defined property to be: 

4 4 The sole and despotic dominion which one man claims 
and exercises over the external things of the world, in total 
exclusion of the right of any other individual in the 
universe. ’ ’ 

It was held by the Supreme Court of Arkansas to be the 
free use and enjoyment by a person of all his acquisitions 
without any control or dominion, save only by the law of 
the land. 23 But property may in general be defined to be 
anything which a person owns. 

Private Property Defined. Mr. Justice Harlan said: 

4 4 What is private property within the meaning of the 
Fifth Amendment to the Constitution, is not always easy 
to determine. No decision of this court has announced a 
rule that will embrace everv case.” 24 

But it was held, in Commissioners v. Withers, 25 that 
private property included such property as belonged abso¬ 
lutely to an individual, and of which he lias the exclusive 
right of disposition; property of a specific, fixed, and 
tangible nature capable of being held in possession and 
transferred to another, such as houses, lands, and chattels. 

Taking of Private Property . Mr. Chief Justice Zane, in 
People v. Daniels, 20 said, in construing this clause: 

2 1 Madison’s Journal, Const. Convention, 298. 24179 U. S. 141, 153. 

22 Soulard v. U. S., 4 Pet. (U. S.) 511. 25 29 Miss. 21, 32. 

23 Stevens & Wood v. State, 2 Ark. 291-299. 20 Q Utah 297, 298. 


CONSTITUTION OF THE UNITED STATES 


175 


“The Government may appropriate the property of the 
individual when necessary in one of three ways. First, by 
taking in the mode prescribed after paying the owner for it; 
Second, by estimating the benefits to the owner’s property 
from the improvements to be made, and taking the amount 
estimated in money; Third, by taking the property in form 
of money by the methods of taxation for which the benefits 
of protection and other advantages are furnished by 
the Government. The same principle underlies all these 
methods. When the property is taken under the right of 
eminent domain, the public pays the owner in money; when 
money is exacted by means of a special assessment, the 
owners are compensated in special benefits to their property 
by public improvements made in its expenditure; and when 
money is exacted by a general tax, the payer is compen¬ 
sated in the benefits received from the Government in any 
and all of the ways that a Government may benefit society. 
Thus the individual is compensated for the property he 
parts with, whether it consists of lands, or money, or other 
property. Effect may be given to a law according to the 
letter in which it is couched, or it may be construed in the 
light of the conditions in which it is to be applied, and be 
made to affect everything within the reach of its just impli¬ 
cations. . 

“The word ‘taken’ in this clause embraces the appropria¬ 
tion by any method, and the expression ‘just compensation’ 
includes any compensation, whether in money or benefits, 
provided the compensation is a just one, ... a fair 
equivalent for the property parted with.” 

What is a Public Use . In undertaking to define this term, 
Judge Cooley said: 

“We find ourselves somewhat at sea when we undertake 
to define, in the light of judicial decisions, what constitutes 
a public use.” 27 

In United States v. Gettysburg Electric Railway Co., 28 
it was held that taking land for the purpose of surveying, 
locating, and preserving battle lines of the battle field of 
Gettysburg, and locating the sites, and places upon which 
the battle occurred, and the erection of monuments upon 

27 Cooley’s Const. Lim., 766. 


28 160 U. S. 668. 


176 


CONSTITUTION OF THE UNITED STATES 


the battle field, was taking for a public use. So taking lands 
for squares in cities, and taking lands for railroad pur¬ 
poses, the construction of which was authorized by law, 
was taking property for public use. 29 What is a public use 
often depends upon surrounding facts and circumstances. 30 

Just Compensation. This term, like some others in the 
Constitution, is almost incapable of exact definition, but in 
•Chesapeake & Ohio Canal Company v. Key, 31 it was said: 

‘ 4 Just compensation means a compensation which would 
be just in regard to the public, as well as in regard to the 
individual; and if the jury should be satisfied that the indi¬ 
vidual would, by the proposed public work, receive a benefit 
to the full value of the property taken, it could not be said to 
be a just compensation, to give him the full value. If the 
jury would have a right to consider the benefit as well as the 
damage, without the provision of the charter which requires 
them to do so, the same objection would still exist, namely, 
that under the provisions of the charter, it might happen 
that no compensation at all, or, at most, a nominal compen¬ 
sation, would be made. The insertion, therefore, of that 
provision in the charter which requires the jury to do what 
they would be competent to do without such a provision, and 
which, in order to ascertain a compensation which should 
be just towards the public, as well as just towards the 
individual, they ought to do, cannot be considered as repug¬ 
nant to the Constitution.” 

The Supreme Court held, in Bauman v. Boss : 32 

“By the Constitution of the United States, the estimate 
of the just compensation for property taken for the public 
use, under the right of eminent domain, is not required to 
be made, by a jury; but may be entrusted by Congress to 
commissioners appointed by a court, or by the Executive, 
or to an inquest consisting of more or fewer men than an 
ordinary jury.” 

29 Shoemaker v. U. S., 147 U. S. 282, 298. 

30 Fallbrook Irr’g. Dist. v. Bradley, 164 U. S. 159, 160. 

31 3 Cranch, C. C. 599, 601. 

32 167 U. S. 548, 593. 


CHAPTER XIII 


SCOPE OF SIXTH, SEVENTH, EIGHTH, 

AND NINTH AMENDMENTS 

SIXTH AMENDMENT 

“In all criminal prosecutions, the accused shall enjoy 
the right to a speedy and public trial, by an impartial jury 
of the State and district wherein the crime shall have been 
committed, which district shall have been previously ascer¬ 
tained by law, and to be informed of the nature and cause 
of the accusation; to be confronted with the witnesses 
against him; to have compulsory process for obtaining wit¬ 
nesses in his favor, and to have the Assistance of Counsel 
for his defense/ ’ 

§ 115. History. This Amendment was a part of the first 
Amendment which Mr. Madison introduced in the House of 
Representatives. It then read: 

“In all criminal prosecutions, the accused shall enjoy 
the right to a speedy and public trial, to be informed of 
the cause and nature of the accusation, to be confronted 
with his accusers, and the witnesses against him; to have 
a compulsory process for obtaining witnesses in his favor; 
and to have the assistance of counsel for his defense.” 1 

The provision in this Amendment that ‘ ‘ the accused shall 
be confronted with his accusers” was omitted from the final 
Amendment, by the Committee of Eleven. 2 

The Amendment as passed by Congress was agreed upon 
by the Committee of Conference. 3 

Mr. Madison doubtless got the suggestion for the frame¬ 
work of this Amendment from the Constitution of New 
Jersey, Massachusetts, or Maryland, for each of them con¬ 
tained a similar provision. 

1 1 Annals 452. 3 1 Annals 948. 

2 Thorpe's Const. History of the U. S., vol. 2, 226. 


177 


178 


CONSTITUTION OF THE UNITED STATES 


Air. Charles O’Connor in his celebrated argument in the 
case of United States v. Jefferson Davis, concerning the 
origin of this Amendment, said in speaking of the cruelties 
which were practiced in England for many years before 
the American Revolution: 

4 4 The accused were generally convicted and executed with 
all the attendant horrors enumerated in the barbarous 
treason sentence. They were hanged, drawn, and quar¬ 
tered. Alany of the cases are stated in Sir Alichael Foster’s 
Treatise on Crown Law. This work, first published in 1761, 
soon found its way across the Atlantic ; and just about the 
time when 4 the troubles in America,’ as they were called, 
began to unsettle British authority here. The harsh treat¬ 
ment and cruel fate of these true-hearted people were thus 
fully described and made known to our people. One of 
the most thrilling of these scenes was the subject of Shen- 
stone’s touching ballad, 4 Jemmy Dawson’. It cannot be 
doubted that the feeling excited by these cruel prosecutions 
induced the adoption of the Sixth Amendment. It was 
intended that no such transactions should ever stain the 
judicial annals of our country.” 4 

§ 116. Speedy Trial. What is meant by the language of 
the Amendment, 44 Speedy trial”, was considered in Ex 
parte Stanley, 5 where it was said/* 

4 4 It is very clear that one arrested and accused of crime 
has not the right to demand a trial immediately upon the 
accusation or arrest being made. He must wait until a 
regular term of the Court having jurisdiction of the offense 
with which he is charged, until an indictment is found and 
presented, and until the prosecution has had a reasonable 
time to prepare for the trial. Nor does a speedy trial mean 
a trial immediately upon the presentation of the indictment 
or the arrest upon it. It simply means that the trial shall 
take place as soon as possible after the indictment is found, 
without depriving the prosecution of a reasonable time for 
preparation. The law is the embodiment of reason and 
good sense; hence, whilst it secures to every person accused 
of crime the right to have such charge speedily determined 
by a competent jury, it does not exact impossibilities, 
extraordinary efforts, diligence, or exertion from the courts, 

4 Chase’s Decisions, 121. 


5 4 Nev. 116. 


CONSTITUTION OF THE UNITED STATES 179 

or the representatives of the State; nor does it contem¬ 
plate that the right of a speedy trial which it guaranteed 
to the prisoner shall operate to deprive the State of a 
reasonable opportunity of fairly prosecuting criminals.” 

So, in United States v. Fox, 6 it was said: 

4 4 The speedy trial, to which a person charged with crime 
is entitled under the Constitution, then is a trial at such 
time (after the finding of the indictment, regard being had 
to the terms of court) as shall afford the prosecution a rea¬ 
sonable opportunity, by the fair and honest exercise of 
reasonable diligence, to prepare for a trial; and if the trial 
is delayed or postponed beyond such period, when there is 
a term of court at which the trial might be had, by reason 
of the neglect or laches of the prosecution in preparing for 
trial, such delay is a denial to the defendant of his right to 
a speedy trial.’ 9 

Thus it has been held that the word “speedy ’ 9 should 
be construed with referenece to the surrounding facts and 
circumstances. 

Mr. Justice McKenna in Beavers v. Haubert, 7 said: 

“It is relative and consistent with delays and depends 
upon circumstances and does not preclude the rights of 
public justice.” 

§ 117. Public Trial. A public trial such as is contem¬ 
plated by this Amendment cannot be construed to mean 
that the trial court would have no power to prohibit certain 
persons from attending trial. Such matters largely rest 
in the discretion of the judges trying the case, who will be 
able to decide from the nature of the trial and the character 
of the evidence whether it would be proper to admit certain 
persons or not. Perhaps there lias been no better summing 
up of the law on this subject than that by Judge Cooley: 

“By this is not meant that every person who sees fit 
shall in all cases be permitted to attend criminal trials; 
because there are many cases where, from the character of 
the charge and the nature of the evidence by which it is to 

6 3 Montana, 517 7 198 U. S. <7, 87. 


180 


CONSTITUTION OF THE UNITED STATES 


be supported, the motives to attend the trial on the part of 
portions of the community would be of the worst character, 
and where a regard to public morals and public decency 
would require that, at least the young be excluded from 
hearing and witnessing the evidences of human depravity 
which the trial must necessarily bring to light. The 
requirement of the public trial is for the benefit of the 
accused; that the public may see he is fairly dealt with and 
not unjustly condemned, and that the presence of interested 
spectators may keep his triers keenly alive to a sense of 
their responsibility and to the importance of their func¬ 
tions; and the requirement is fairly observed if, without 
partiality or favoritism, a reasonable proportion of the 
public is suffered to attend; notwithstanding that those 
persons whose presence could be of no service to the ac¬ 
cused, and who would only be drawn thither by a prurient 
curiosity are excluded altogether.’’ 8 

Illustrations as to Public Trial. The clause under con¬ 
sideration is similar to one in the Constitution of Michigan. 

* In that State a criminal trial was in progress when the 
Court directed the sheriff to stand at the door of the court 
room 4 ‘and see that the room was not overcrowded, but 
that all respectable citizens should be admitted and have 
an opportunity to get in when they applied.” 

The Supreme Court of Michigan 9 held this was error and 
a violation of the Constitutional rights of the defendant. 
In Mississippi a trial judge called a member of the bar to 
the bench with the consent of counsel and then left the court 
room for some minutes during the closing argument in the 
case for the State. The Supreme Court of Mississippi 10 
held this was error and that the defendant, the prisoner, 
was entitled to have a legally constituted court at every 
stage of his trial. 

§118. Impartial Jury. This subject was considered by 
Chief Justice Chase in the case of Reynolds v. United 
States, 11 in which he quoted the famous expression of 

8 Cooley’s Const. Lim. (7th ed.) 441. 

9 People v. Murray, 89 Mich. 276, 283-286. 

10 Elberbe v. State, 75 Miss. 522, 531. 

11 98 U. S. 145, 154, 155. 


CONSTITUTION OF THE UNITED STATES 


181 


Lord Coke that a juror to be impartial must “be indiffer¬ 
ent as lie stands unsworn. 77 Further on in his opinion the 
Chief Justice said: 

“It is good ground for such a challenge that a juror has 
formed an opinion as to the issue to be tried. The courts 
are not agreed as to the knowledge upon which the opinion 
must rest in order to render the juror incompetent, or 
whether the opinion must be accompanied by malice or ill- 
will; but all unite in holding that it must be founded on 
some evidence, and be more than a mere impression. Some 
say it must be positive; others, that it must be decided and 
substantial; others, fixed; and still others, deliberate and 
settled. All concede, however, that, if hypothetical only, 
the partiality is not so manifest as to necessarily set the 
juror aside. . . . The theory of the law is that a juror 

who has formed an opinion cannot be impartial. Every 
opinion which he may entertain need not necessarily have 
that effect. In these days of newspaper enterprise and 
universal education, every case of public interest is almost, 
as a matter of necessity, brought to the attention of all 
the intelligent people in the vicinity, and scarcely any one 
can be found among those best fitted for jurors who has 
not read or heard of it, and who has not some impression 
or opinion in respect to its merits. It is clear, therefore, 
that upon the trial of the issue of fact raised by a chal¬ 
lenge for such cause the court will practically be called 
upon to determine whether the nature and strength of the 
opinion formed are such as in law necessarily raise the 
presumption of partiality. The question thus presented is 
one of mixed law and fact, and to be tried, as far as the 
facts are concerned, like any other issue of that character, 
upon the evidence. The finding of the trial court upon 
that issue ought not to be set aside by a reviewing court, 
unless the error is manifest. No less stringent rules should 
be applied by the reviewing court in such a case than those 
which govern in the consideration of motions for new trial 
because the verdict is against the evidence. It must be 
made clearly to appear that upon the evidence the court 
ought to have found the juror had formed such an opinion 
that he could not in law be deemed impartial. The case 
must be one in which it is manifest the law left nothing 
to the ‘conscience or discretion 7 of the court. 77 

Jury Must Consist of Tivelve Men. Mr. Justice Peck- 


182 CONSTITUTION OF THE UNITED STATES 

liam in Maxwell v. Dow, 12 said this in reference to the jury 
that: 

“A jury composed, as at common law, of twelve jurors 
was intended by the Sixth Amendment to the Federal Con¬ 
stitution, there can be no doubt.” 

Yet where the Constitution of a State provides that a 
defendant may be tried for a crime other than capital by 
a jury composed of less than twelve, the provision is not in 
conflict with this Amendment. 13 So it has been held that 
this provision which gives citizens the right of trial by 
jury referred to that right as it existed by the common 
law at the time of the Constitution, and the Sixth Amend- 
ment, therefore, must be construed with reference to such 
right as it existed when the Amendment was adopted. 14 

The provision in the criminal code of Alaska which pro 
vided that trials in Alaska for misdemeanors by a jury o 
six persons was held to be a violation of this Amendment. 1 

§ 119. Nature of Accusation. The most important pro¬ 
vision in the Amendment is the one which provides that 
the accused shall be informed of the nature and cause of 
the accusation. A mere general statement as to what the 
nature of the accusation is against the defendant does not 
answer the requirements of the Constitution. The accusa¬ 
tion must be set forth plainly and distinctly, and must be 
specific and accurate. The following discussion on the sub¬ 
ject was had in United States v. Cook: 16 

“Offenses created by statute, as well as offenses at com¬ 
mon law, must be accurately and clearly described in an 
indictment, and if they cannot be, in any case, without 
an allegation that the accused is not within an excep¬ 
tion contained in the statutes defining the offense, it is 
clear that no indictment founded upon the statute can be 
a good one which does not contain such an allegation, as 
it is universally true that no indictment is sufficient if it 

12 176 U. S. 581, 586. 

is Thompson v. Utah, 170 U. S. 343, 349, 353, 355. 

i4 West v. Gammon, 98 Fed. Rep. 427. 

is Rasmussen v. U. S., 197 U. S. 518, 521. 

i6 17 Wall. 168, 174. 


CONSTITUTION OF THE UNITED STATES 


183 


does not accurately and clearly allege all the ingredients 
of which the offense is composed. With rare exceptions, 
offenses consist of more than one ingredient, and in some 
cases of many, and the rule is universal that every ingre¬ 
dient of which the offense is composed must be accurately 
and clearly alleged in the indictment, or the indictment 
would be bad, and may be quashed on motion, or the judg¬ 
ment may be arrested, or be reversed on error.” 

The question was more fully discussed perhaps in United 
States v. Cruikshank : 17 

“In criminal cases, prosecuted under the laws of the 
United States, the accused has the Constitutional right ‘to 
be informed of the nature and cause of the accusation ’. 
It is an elementary principle of criminal pleading, that 
where the definition of an offense, whether it be at common 
law or by statute, 4 includes generic terms, it is not sufficient 
hat the indictment shall charge the offense in the same 
generic terms as in the definition; but it must state the 
species—it must descend to particulars. The object of the 
indictment is, first, to furnish the accused with such a de¬ 
scription of the charge against him as will enable him to 
make his defense, and avail himself of his conviction or 
acquittal for protection against a further prosecution for 
the same cause; and, second , to inform the court of the 
facts alleged, so that it may decide whether they are suffi¬ 
cient in law to support a conviction, if one should be had. 
For this, facts are to be stated, not conclusions of law 
alone. A crime is made up of acts and intent; and these 
must be set forth in the indictment, with reasonable par¬ 
ticularity of time, place, and circumstances.” 

§ 120. District Where Crime Committed. It was held in 
the late case of Haas v. United States Marshal, 1S that if 
a person committed a crime in a district other than the 
one of his residence, he cannot object to his removal thereto 
for trial, and when he has been indicted for the same 
offense in more than one district, and resides in one of 
them, the prosecuting officer should bring the trial in the 
district to which the facts most strongly point. 

§ 121. "Witnesses Against Accused. This is a very 
important provision in the interest of the accused. So 

it 92 U. S. 557, '558. 18 216 U. S. 462. 


184 


CONSTITUTION OF THE UNITED STATES 


important is it to him that it was held in United States v. 
Angell, 19 that this provision was without exception, not if 
the witnesses can he produced, nor if they are within the 
jurisdiction, hut absolutely on all occasions. But it has 
been held that there are some exceptions to this rule. Thus, 
the Amendment does not prevent the admission of dying 
declarations; nor depositions of witnesses who have died 
since the former trial. 20 These exceptions arise from the 
very necessities of the case. They were established before 
the Constitution was adopted and were not intended to be 
abrogated. 

Compulsory Process for Obtaining Witnesses. The 
Amendment also provides in the interest of the accused that 
he shall have compulsory process for obtaining witnesses 
in his favor. This means that the power of the Court can 
be invoked by the defendant to compel the attendance of 
witnesses who are presumably favorable to him, but this 
provision was never a part of the common law. In very 
early times in England and down as late as the seventeenth 
century a defendant in a criminal case was not permitted 
to have witnesses. At a later day the practice changed and 
witnesses were permitted to testify but not under oath. It 
was in the reign of Queen Anne and about 1700, that Parlia¬ 
ment passed an Act which permitted witnesses to testify 
under oath both for the Government and for the defendant, 
in all cases of felony as well as treason. 

Under this provision of the Amendment, it became the 
duty of the court, when applied to by the defendant for 
that purpose, to send for witnesses wherever they may be 
if within the jurisdiction of the Court, upon condition 
that he proves that he is poor and not able to bear the 
expense of sending for the witnesses. 21 

§ 122. Assistance of Counsel. The last provision of the 
Amendment is that the accused shall have the assistance 
of counsel for his defense. This provision also was never 
part of the common law. In the days of the Inquisition, 

is 11 Fed. Rep. 43. 21 5 Bisell 122, 123. 

20 Robertson v. Baldwin, 165 U. S. 275, 282. 


CONSTITUTION OF THE UNITED STATES 185 

tlie defendant in a criminal trial was denied the right to 
counsel, but in Spain, in the year 1480, Ferdinand and 
Isabella ordered that counsel be allowed for all who desired 
them, and that they be provided at the expense of the public 
to those who could not afford to employ them. 22 

So in the eighteenth century similar favors were granted 
in Germany. Prisoners indicted for treason in England 
were first allowed counsel in 1696. It was not until the 
reign of William IV., from 1820-1830, that Parliament 
passed a law authorizing counsel to represent the defend¬ 
ant in cases of felony. This Constitutional provision is now 
incorporated in the Revised Statutes of the United States, 
and in all cases tried in the Federal Courts counsel are 
allowed the accused. 

SEVENTH AMENDMENT 

The Seventh Amendment as found in the Constitution 
reads as follows: 

“In suits at common law, where the value in contro¬ 
versy shall exceed twenty dollars, the right of trial by 
jury shall be preserved, and no fact tried by a jury shall 
be otherwise re-examined in any Court of the United 
States, than according to the rules of the common law.” 

§ 123. History and Comments. Mr. Madison’s Amend¬ 
ment which he introduced in Congress on this subject read: 

“But no appeal to such court shall be allowed where 
the value in controversy shall not amount to $1,000; nor 
shall any fact, triable by a jury according to the course of 
common law, be otherwise reexaminable than according to 
the course of the common law.” Mr. Madison desired that 
this should be inserted in Section (2) of the Third Article 
of the Constitution. When the matter was referred to the 
Committee of Eleven that Committee filled the blank with 
$1,000. The Amendment then read, “but no appeal to such 
court shall be allowed where the value in controversy shall 
not amount to $1,000, nor shall any fact, triable by a jury 
according to the course of the common law, be otherwise 

22 Lea’s Superstition and Force, 469. 


186 CONSTITUTION OF THE UNITED STATES 

reexaminable than according to the rules of the common 
law. ’ 723 

Considerable debate occurred in Congress over this 
Amendment, but it was finally reported and adopted as it 
now stands. Reducing the amount in controversy from 
$1,000 to $20 was probably a purely arbitrary matter with 
Congress. 

In his work on the Constitution, Mr. Justice Miller has 
made the following comment on this Article: 24 

4 4 The first thing to be observed about this Article is 
that it prescribes this mode of trial in 6 suits at common 
laiv’. It does not use the same words as the clause extend¬ 
ing the judicial power to all cases in law and equity\ It 
is to be inferred, therefore, that trial by jury, as imposed 
bv the Constitution, has relation to the common law as it 
was understood in England, and to the right to such a 
trial in that class of cases. This distinction may be impor¬ 
tant in regard to a class of cases where a summary remedy 
is given by a statute, which is itself a departure from 
the common law and at variance with it. 

4 4 But while the effect given by this Article as to a fact 
tried by a jury has relation to such effect in the courts 
of the United States, it applies equally to verdicts found 
by juries in the State courts; that is to say, that in a court 
of the United States a fact once found by a jury of a State 
Court or of a Federal Court shall not be reexamined in 
any other manner than according to the rules of the com¬ 
mon law. This conclusiveness given to the verdict of a 
jury is in accordance with the common law of England, and 
is an additional evidence of the sanctity with which the 
right of trial by jury is held both in that country and this. 

4 4 Let it also be observed that this Article does not pre¬ 
scribe as an arbitrary rule to the courts that all cases 
must be tried by a jury which are suits at common law and 
exceed twenty dollars in value, but that it is the right of 
any party to such a suit to have a trial by a jury if he 
demands it. The parties can waive this right and submit 
the case to the court without a jury, in which case the 
judgment of the court would be equally binding as if there 
had been a verdict of a jury; and in practice in this coun- 

23 Thorpe’s Const. History of the U. S., vol. 2, 226. 

24 Miller, The Constitution, 492-496. 


CONSTITUTION OF THE UNITED STATES 187 

try, both in the Federal and State Courts, a very large 
proportion of the trials of issues of fact are by the judge 
or judges of those courts without the aid of a jury. In 
the Federal Courts the consent of all the parties concerned 
is essential to the validity of this form of trial. Indeed 
it had been decided prior to the Act of Congress of 1865, 
that there could be no writ of error, or appeal, to a judg¬ 
ment of an inferior court in a suit at common law in which 
the parties had submitted the case to the court without a 
jury, because, as was held by the Supreme Court of the 
United States, such judgment was in effect but a mere 
arbitration. But by that statute where the parties waive 
a jury by a stipulation in writing, the finding of the court 
upon the facts, which might be either general or special, 
was to have the same effect as the verdict of a jury, and 
the judgment might be reviewed by the Supreme Court 
upon a writ of error, or upon appeal, the review extending 
to the sufficiency of the facts found to support the judgment, 
and to such exceptions as might have been taken and pre¬ 
sented by a bill of exceptions during the progress of the 
trial. 

“The language of this article is that ‘no fact tried by 
a jury shall be otherwise reexamined in any court of the 
United States than according to the rules of the common 
lawk The common law admitted of but two modes of re¬ 
examining the verdict of a jury. One of these was by a 
motion for a new trial in the same proceeding, and usually 
in the same court in which the verdict was rendered. The 
other was by some supervisory or appellate court which 
had jurisdiction upon a writ of error in certain classes of 
cases to set aside the verdict and grant a new trial. 

‘ ‘ These two modes of reexamining a verdict and affirming 
it, or setting it aside, proceeded upon somewhat different 
principles. The court of original jurisdiction, in which the 
case was tried, had an almost unlimited power of setting- 
aside the verdict for errors of law committed by the court 
itself during the progress of the trial, for insufficiency of 
the evidence to sustain the verdict of the jury, and for 
other causes so numerous and varying that they cannot be 
enumerated here; but it may be said that the power of 
the court in that proceeding, upon a proper showing, to 
reexamine the verdict, was only governed by a sound legal 
discretion. The reexamination by an appellate court on 
a writ of error, or in any other mode by which such a 
case was carried to a superior court for review, extended 


188 CONSTITUTION OF THE UNITED STATES 

only to errors of law committed by the court in the prog¬ 
ress of the case, and which were presented by the record, 
and by bills of exception. By this restriction the appellate 
court was forbidden at common law to enter into an exam¬ 
ination of the weight of evidence and the soundness of the 
verdict of the jury, except as that was affected by some 
matter of law presented in the course of the trial.’ ’ 

This Amendment establishes the right of either party in 
a Federal Court in an action at law where the controversy 
exceeded twenty dollars to the right of trial by jury, and 
that the facts there tried and decided may not be reex¬ 
amined in the Courts of the United States except according 
to the rules of the common law of England. 25 

The provisions of the Amendment apply “to Territories 
of the United States’\ 26 

§ 124. Suits at Common Law. Justice Daniel said, in 
Shields v. Thomas: 27 

“The language of the Seventh Amendment, 4 that suits 
at common law, where the value in controversy shall exceed 
twenty dollars, the right of trial by jury shall be preserved’, 
correctly interpreted cannot be made to embrace the estab¬ 
lished, exclusive jurisdiction of courts of equity, nor that 
which they have exercised as concurrent with courts of law; 
but should be understood as limited to the rights and reme¬ 
dies peculiarly legal in their nature, and such as it was 
proper to assert in courts of law, and by the appropriate 
modes and proceedings of courts of law.” 

§125. Jury Trial. In the Francis Wright case, Chief 
Justice Waite said: 

“The Constitution prohibits a retrial of the facts in 
suits at common law where one trial has been had by a 
jury; but in suits in equity or in admiralty, Congress is 
left free to make such exceptions and regulations in respect 
to retrials as on the whole may seem best.” 28 

A State statute provided that in civil cases nine or 

25 Capital Traction Co. v. Hof, 174 U. S. 1, 13. 

26 Thompson v. Utah, 170 U. S. 346; 177 Black v. Jackson, U. S. 363. 

27 18 Howard 253, 262. 

28 105 U. S. 386. 


CONSTITUTION OF THE UNITED STATES 180 

more members of the jury might concur in a verdict, but 
the Supreme Court of the United States held this was a 
violation of the Seventh Amendment, and said: 

u Uniformity was one of the peculiar and essential fea¬ 
tures of trial by jury at common law, and it is clear that a 
statute which destroys this substantial and essential fea¬ 
ture abridges the right guaranteed by this Seventh Amend¬ 
ment. ’ ,29 

“And no fact tried by a jury shall be otherwise reexam¬ 
ined in any Court of the United States, than according to 
the rules of the common law.” 

In Parsons v. Bedford, 30 Mr. Justice Story said: 

“The only modes known to the common law to reexamine 
such facts are the granting of a new trial by the court 
where the issue was tried, or to which the record was prop¬ 
erly returnable, or the award of a venire facias de novo, 
by an appellate court, for some error of law which inter¬ 
vened in the proceedings.” 

Mr. Justice Gray in Capital Traction Co. v. Hof, 31 in Com¬ 
menting on this provision: 

“It must be taken as established, by virtue of the Sev¬ 
enth Amendment to the Constitution, that either party, to 
an action at law (as distinguished from suits in equity or 
in admiralty) in a court of the United States, where the 
value in controversy exceeds twenty dollars, has the right 
to a trial by jury; that, when a trial by jury has been 
had in an action at law, in a court either of the United 
States or of a State, the facts there tried and decided 
cannot be reexamined in any court of the United States, 
otherwise than according to the rules of the common law 
of England; that by the rules of that law, no other mode 
of reexamination is allowed than upon a new trial, either 
granted by the court in which the first trial was had, or 
to which the record was returnable, or ordered by an appel¬ 
late court for error in law; and, therefore, that unless 
a new trial has been granted in one of those two ways, 
facts once tried by a jury cannot be tried anew, by a jury 
or otherwise, in any Court of the United States. ” 

29 American Pub. Co. v. Fisher, 166 U, S. 464. 
so 3 Pet. 447, 448. 
si 174 U. S, 13. 


190 CONSTITUTION OF THE UNITED STATES 

EIGHTH AMENDMENT 

This important Amendment is in the following language: 

‘ ‘ Excessive bail shall not be required, nor excessive fines 
imposed, nor cruel and unusual punishments inflicted.” 

This Amendment was embraced within, and was part of, 
Mr. Madison’s Fourth Amendment. 32 

§126. Excessive Bail. What would be “excessive bail” 
in one case would not be in another. The word, therefore, 
must be considered in relation to the circumstances under 
which the offense was committed. It is the purpose of the 
provision to secure the personal presence of the accused at 
the trial. The object of bail is not to provide a punishment 
for a given offense, but to require the presence of the 
offender when his trial occurs. It was held by the Supreme 
Court of Colorado, 33 that 1 ‘ bail ’ ’ which would be more than 
reasonably sufficient to prevent evasion of the law by 
flight or concealment would be “excessive bail”. And it 
was held by the Supreme Court of California 34 that: 

“in order to be 4 excessive’ the bail must be per se unrea¬ 
sonably great and clearly disproportionate to the offense 
involved. ’ ’ 

§ 127. Excessive Fines. This Amendment also prohibits 
the imposition of excessive fines upon defendants. 

This provision came up for review before the Supreme 
Court of Michigan. 35 The legislature of that State had 
levied a tax of not more than $500, nor less than $100, on any 
druggist who sold intoxicating liquors contrary to law, and 
also permitted the defendant to be imprisoned not more than 
one year nor less than ninety days, or both fined and impris¬ 
oned. The statute further provided that in case of a sec¬ 
ond offense, the druggist in addition to the other punish¬ 
ments inflicted, would be debarred from selling liquor in 
that State for five years. The Supreme Court of that 

32 1 Annals 452. 

33 in re Losasso et al., 15 Col. 163, 169. 

34 44 Ex parte Ryan, Cal. 555, 558. 

35 Robison v. Minor and Hang, 68 Mich. 549. 


CONSTITUTION OF THE UNITED STATES 


191 


State lield that this provision was contrary to the Eighth 
Amendment, and consequently unconstitutional. 

§ 128. What Are Not Gruel and Unusual Punishments. 
What constitutes cruel and unusual punishment is a sub¬ 
ject which has often been before the courts. It was held 
in New Mexico that whipping as a punishment for horse 
stealing was not 4 ‘ cruel and unusual punishment.’ ,36 In 
Maryland it was held that whipping was not cruel punish¬ 
ment for beating a wife. 37 And in Missouri it was held, to 
compel one to labor on the street for not paying a fine 
assessed upon him by the court was not cruel or unusual 
punishment. 38 In some States the punishment for murder 
is to be shot until dead, and it was held that this was not 
cruel or unusual punishment. 39 So death by hanging has 
been held not to be cruel or unusual punishment. 40 Neither 

is death bv electrocution. 41 
«/ 

§ 129. What Are Cruel and Unusual Punishments. On 

the other hand it was held in North Carolina, 42 that the 
sentence of a man to five years’ imprisonment in the county 
jail because he whipped his wife, was both cruel and 
unusual punishment. 

In Ho Ah Kow v. Nunan, 43 Mr. Justice Field held that an 
ordinance passed by the city of San Francisco which pro¬ 
vided that in certain cases a Chinaman’s queue should be 
cut off was cruel and unusual punishment. 

In interpreting the Eighth Amendment it will be 
regarded as a precept of justice that punishment for crime 
should be graded in proportion to the offense. 

In Weems v. United States 44 the Supreme Court recently 

held the Eighth Amendment was progressive, and “does 
not prohibit merely the cruel and unusual punishments 

36 Nester Garcia v. Ter. of New Mex., 1 New Mex. 415. 

37 Chas. Foote v. State of Md., 59 Md. 264. 

38 Ex parte Wm. Bedell, 20 Mo. Appeals 125. 

39 Wilkerson v. Utah, 99 U. S. 130, 137. 

405 Parker’s Criminal Reports, 382. 

41 McElvaine v. Brush, 142 U. S. 155, 158. 

42 State v. Giles Driver, 78 N. C. 423, 425, 430. 

43 5 Saw. 552, 557. 

44 217 U. S. 350. 


102 


CONSTITUTION OF TIIE UNITED STATES 


known in 1689 and 1787, but may acquire wider meaning 
as public opinion becomes enlightened by human justice.” 

NINTH AMENDMENT 

“The enumeration in the Constitution of certain rights 
shall not be construed to deny or disparage others retained 
by the people. ’ ’ 

§ 130. Comments on Amendment. Mr. Justice Story 
comments on this clause in his work on the Constitution as 
follows: 

“This clause was manifestly introduced to prevent any 
perverse or ingenious misapplication of the well-known 
maxim, that an affirmation in particular cases implies a 
negation in all others, and, e converse*, that a negation in 
particular cases implies an affirmation in all others. The 
maxim, rightly understood, is perfectly sound and safe; but 
it has often been strangely forced from its natural meaning 
into the support of the most dangerous political here¬ 
sies.” 45 

In his Fourth Amendment Mr. Madison included the fol¬ 
lowing clause: 

“The exceptions here or elsewhere in the Constitution, 
made in favor of particular rights, shall not be so construed 
as to diminish the just importance of other rights retained 
by the people, or as to enlarge the powers delegated by the 
Constitution; but either as actual limitations of such pow¬ 
ers, or as inserted merely for greater caution.” 46 

This was changed by the Committee of Eleven so that it 
read, “The enumeration in this Constitution of certain 
rights, shall not be construed to disparage others retained 
by the people. ’ ,47 This report of the Committee was again 
changed by the Committee of Three to read as found in the 
Amendment. 48 

It has been said by an eminent writer of the Constitution 
that the words “certain rights” have reference to the sev- 

45 Story, The Constitution, vol. 2, § 1905. 

46 1 Annals 452. 

4 7 Thorpe’s Const. History of the United States, vol. 2, 226. 

48 1 Annals 453. 


CONSTITUTION OF THE UNITED STATES 


193 


eral general and special powers granted, surrendered or 
delegated to tlie different departments of the government. 
The same writer says in the same connection, the word 
41 people’’ in the Amendment must be used in the sense of 
“We, the people,’’ in the Preamble and in the Tenth 
Amendment. 49 

49 Paschal, The Constitution, 268, 269. 








CHAPTER XIV 

SCOPE OF TENTH AND ELEVENTH AMENDMENTS 

TENTH AMENDMENT 

“The powers not delegated to the United States by the 
Constitution, nor prohibited by it to the States, are reserved 
to the States respectively, or to the people. ” 

§ 131. History and Comments. This was the last Amend¬ 
ment which Mr. Madison introduced, and the only change 
made in it by Congress was to add the last words “or to the 
people”, which was done while the Amendment was being 
considered in the House. 1 The Amendment guards the 
reserved rights of the States and marks the line of power 
between them and the General Government. Probably the 
Amendment was suggested by the following provision of 
the Second Article of the Articles of Confederation: 

“Each State retains its sovereignty, freedom, and inde¬ 
pendence, and every power, jurisdiction, and right, which 
is not by this Confederation expressly delegated to the 
United States in Congress assembled.” 

SUMMARY AND DISCUSSION ON FIRST TEN AMENDMENTS 

The history of this Amendment was reviewed by Mr. 
Chief Justice Marshall in his opinion in the great case of 
McCulloch v. Maryland, 2 where he said: 

“The Tenth Amendment, which was framed for the pur¬ 
pose of quieting the excessive jealousies which had been 
excited, omits the word ‘expressly’, and declares only that 
the powers ‘not delegated to the United States, nor pro¬ 
hibited to the States, are reserved to the States or to the 
people’; thus leaving the question, whether the particular 
power which may become the subject of contest has been 
delegated to the one government, or prohibited to the 
other, to depend on a fair construction of the whole instru- 

i Annals 453. 2 4 Wheaton, 406. 


194 


CONSTITUTION" OF THE UNITED STATES 


105 


ment. The men who drew and adopted this Amendment had 
experienced the embarrassments resulting from the inser¬ 
tion of this word in the Articles of Confederation, and 
probably omitted it to avoid those embarrassments. A 
Constitution, to contain an accurate detail of all the sub¬ 
divisions of which its great powers will admit, and of all 
the means by which they may be carried into execution, 
would partake of the prolixity of a legal code, and could 
scarcely be embraced by the human mind. It would prob¬ 
ably never be understood by the public. Its nature, there¬ 
fore, requires that only its great outlines should be marked, 
its important objects designated, and the minor ingredi¬ 
ents which compose those objects be deduced from the 
nature of the objects themselves. That this idea was enter¬ 
tained by the framers of the American Constitution, is not 
only to be inferred from the nature of the instrument, but 
from the language.” 

In Collector v. Day, 3 Mr. Justice Nelson said: 

“ It is a familiar rule of construction of the Constitution 
of the Union, that the sovereign powers vested in the State 
governments by their respective Constitutions, remained 
unaltered and unimpaired, except so far as they were 
granted to the Government of the United States. That the 
intention of the framers of the Constitution in this respect 
might not be misunderstood, this rule of interpretation is 
expressly declared in the tenth article of the Amendments. 
The Government of the United States, therefore, can claim 
no powers which are not granted to it by the Constitution, 
and the powers actually granted must be such as are ex¬ 
pressly given, or given by necessary implication. The Gen¬ 
eral Government, and the States, although both exist within 
the same territorial limits, are separate and distinct sov¬ 
ereignties, acting separately and independently of. each 
other, within their respective spheres. The former hi its 
appropriate sphere is supreme; but the States within the 
limits of their powers not granted, or, in the language of 
the Tenth Amendment, 'reserved', are as independent of 
the General Government as that Government within its 
sphere is independent of the States. 

Mr. Justice Brewer, commenting upon this Amendment 
in Turner v. Williams, 4 observed: 

4 194 U. S. 279, 295. 


s 11 Wal. 113, 124. 



196 


CONSTITUTION OF THE UNITED STATES 


“While undoubtedly the United States as a nation has 
all the powers which inhere in any nation, .Congress is 
not authorized in all things to act for the Nation, and too 
little effect has been given to the Tenth Article of the 
Amendments to the Constitution. The powers the people 
have given to the General Government are named in the 
Constitution, and all not there named, either expressly or 
by implication, are reserved to the people and can be exer¬ 
cised only by them, or upon further grant from them.” 

Apparently assigning as a reason why the Tenth Amend¬ 
ment was adopted, the same Justice, in Kansas v. Colorado, 
said 

“It disclosed widespread fear that the National Govern¬ 
ment might, under the pressure of the supposed general 
welfare, attempt to exercise powers which had not been 
granted. With equal determination the framers intended 
that no such assumption should ever find justification in the 
organic act, and that if in the future further powers seemed 
necessary they should be granted by the people in the 
manner they had provided for amending that act. The 
principal factor in this article is ‘the people’. The prin¬ 
cipal purpose of the Amendment is not the distribution of 
power between the United States and the States, but a 
reservation to the people of all powers not granted. . . . 
This article is not to be shorn of its meaning by any narrow 
or technical construction, but is to be considered fairly and 
liberally so as to give effect to its scope and meaning. ’ ’ 5 

§ 132. Van Buren’s Tribute to Madison. This completes 
our consideration of what are known as the original Amend¬ 
ments. Martin Van Buren, President of the United States, 
has said of them: 

“They were only second in intrinsic importance, on ac¬ 
count of the influence their success exerted on the solidity 
and perpetuity of the new system, to the Constitution 
itself, and the debates in point of ability and earnestness, 
particularly on the part of Mr. Madison, not inferior to 
any of the discussions by which that interesting period 
when the foundations of the present government were laid 
was so greatly distinguished; one cannot read them without 
acknowledging the difficulty of recalling another instance 

5 206 U. S. 46, 90. 


197 


CONSTITUTION OF THE UNITED STATES 

in which a measure of equal gravity was so successfully 
carried through a public body against the obvious and de¬ 
cided preferences of a large majority of its members, or 
without admiring the extent to which that success was 
achieved by the exertions of one man. . . . That Mr. 

Madison’s success in this great measure saved the Consti¬ 
tution from the ordeal of another Federal Convention is 
a conclusion as certain as any that rests upon a contin¬ 
gency which has not actually occurred, and that it con¬ 
verted the residue of the Anti-Federal party which had not 
supported the Constitution, whose members, as well as their 
political predecessors in every stage of our history, consti¬ 
tuted a majority of the people, from opponents of that in¬ 
strument into its warmest friends, and that they and their 
successors.have from that time to the present period, either 
as Republicans or Democrats, occupied the position of its 
bona fide defenders in the sense in which it was designed 
to be understood by those who constructed and by those 
who ratified it, against every attempt to undermine or sub¬ 
vert it, are undeniable facts.” 6 

§ 133. Limitations on Federal Government. The fore¬ 
going Amendments were intended as limitations upon the 
powers of the Federal Government and not upon those of 
the States. They have passed into the Constitutional his¬ 
tory of the United States as the Bill of Rights, largely 
because they were intended to supply the function of a Bill 
of Rights, and also partly because they relate to such per¬ 
sonal rights and guarantees as are the basis of personal 
liberty and the security of personal property. 

It is not claimed that they announce new principles of 
government, or new guarantees of liberty or protection of 
property, hut their limitations upon the powers of the Gen¬ 
eral Government and not on the States was announced as 
early as 1825, in the Supreme Court of New York in Jackson 
v. Wood, 7 where it was said by Chief Justice Walworth: 

am clearly of the opinion that the Amendments were 
never intended to limit the powers of the States, or to 
control the proceedings of the State Courts.” 

C Van Buren’s Political Parties in the U. S., 192-201. 

7 2 Cowen, 819-821. 


198 


CONSTITUTION OF THE UNITED STATES 


Nine years afterwards Chief Justice Marshall, in Barron 
v. The Mayor and the City of Baltimore, 8 in referring U 
these Amendments, said: 

“They contained no expression indicating an intention 
to apply them to the State Governments, and this Court 
can not so apply them. 

“Had the people of the several States, or any of them, 
required changes in their Constitutions; had they required 
additional safeguards to liberty from the apprehended en¬ 
croachments of their particular governments; the remedy 
was in their own hands, and would have been applied by 
themselves. A convention would have been assembled by 
the discontented States, and the required improvement 
would have been made by itself. The unwieldy and cum¬ 
brous machinery of procuring a recommendation from two- 
thirds of Congress, and the assent of three-fourths of their 
sister States, could never have occurred to any human being 
as a mode of doing that which might be effected by the 
State itself. Had the framers of these Amendments in¬ 
tended them to be limitations on the powers of the State 
Governments, they would have imitated the framers of the 
original Constitution, and have expressed that intention. 
Had Congress engaged in the extraordinary occupation of 
improving the Constitutions of the several States by afford¬ 
ing the people additional protection from the exercise of 
power by their own governments in matters which con¬ 
cerned themselves alone, they would have declared this pur¬ 
pose in plain and intelligible language. 

“But it is universally understood, it is a part of the 
history of the day, that the great revolution which estab¬ 
lished the Constitution of the United States, was not 
effected without immense opposition. Serious fears were 
extensively entertained that those powers which the patriot 
statesmen, who then watched over the interests of our coun¬ 
try, deemed essential to union, and to the attainment of 
those invaluable objects for which union was sought, might 
be exercised in a manner dangerous to liberty. In almost 
every convention by which the Constitution was adopted, 
Amendments to guard against the abuse of power were 
recommended. These Amendments demanded security 
against the apprehended encroachments of the General Gov¬ 
ernment—not against those of the local governments. 

s 7 Peters, 243, 247, 249. 


CONSTITUTION OF THE UNITED STATES 


199 


L ‘ In compliance with a sentiment thus generally ex¬ 
pressed, to quiet fears thus extensively entertained, Amend¬ 
ments were proposed by the required majority in Congress, 
and adopted by the States. These Amendments contain no 
expression indicating an intention to apply them to the 
State Governments.” 

In Withers v. Buckley, 9 et at, the court said: 

“To every person acquainted, with the history of the 
Federal Government, it is familiarly known, that the ten 
Amendments first engrafted upon the Constitution had 
their origin in the apprehension that in the investment 
of powers made by that instrument in the Federal Gov¬ 
ernment, the safety of the States and their citizens had not 
been sufficiently guarded. That from this apprehension 
arose , the chief opposition shown to the adoption of the 
Constitution. That, in order to remove the cause of this 
apprehension, and to effect that security which it was feared 
the original instrument had failed to accomplish, twelve 
articles of Amendment were proposed at the first session 
of the first Congress, and the ten first articles in the exist¬ 
ing series of Amendments were adopted and ratified by 
Congress and by the States, two of the twelve proposed 
Amendments having been rejected. The Amendments thus 
adopted were designed to be modifications of the powers 
vested in the Federal Government, and their language is 
susceptible of no other rational, literal, or verbal accepta¬ 
tion/ 9 

It was said by Mr. Justice Brown: 10 

“The law is perfectly well settled that the first ten 
Amendments to the Constitution commonly known as the 
Bill of Rights, were not intended to lay down any novel 
principles of government, but simply to embody certain 
guarantees and immunities which we had inherited from 
our English ancestors, and which had from time imme¬ 
morial been subject to certain well recognized exceptions 
arising from the necessities of the case/’ 

ELEVENTH AMENDMENT 

§134. History and Comments. “The Judicial power of 
the United States shall not be construed to extend to any 
suit in law or equity, commenced or prosecuted against 

& 20 Howard, 84, 89, 90. 


200 


CONSTITUTION OF THE UNITED STATES 


one of the United States by Citizens of another State, or 
by Citizens or Subjects of any Foreign State.” 

This Amendment was ratified nine years after the estab¬ 
lishment of the Government. Mr. Sedgwick, a member of 
the House of Representatives from Massachusetts, proposed 
it. It grew out of the suit of Chisholm v. Georgia ; lx where 
the Supreme Court of the United States held—one justice 
dissenting—that citizens of one State could sue a State in 
the Federal Courts. 

Before the Constitution was ratified it was believed by 
some statesmen that this power existed under the clause of 
the Constitution which provides that “the judicial power 
shall extend to controversies between a State and the citi¬ 
zens of another State, and between a State and a foreign 
State, citizens or subjects.” In the Virginia Convention 
which ratified the Constitution, Patrick Henry and Mr. 
Madison made this contention. Mr. Mason and Mr. Mar^ 
shall took the opposite view in the Convention which framed 
the Federal Constitution, and in the “Federalist” Mr. Ham¬ 
ilton opposed the views of Mr. Madison and Mr. Henry, 
and agreed with Mason and Marshall. The decision of the 
Supreme Court in Chisholm v. Georgia, was a distinct vic¬ 
tory for Mr. Henry and Mr. Mason, and those who agreed 
with them. Two days after the decision of the Court, which 
was on the eighteenth of February, 1793, the following 

Amendment was proposed in Congress to the Constitution: 

* 

“The judicial. power of the United States shall not 
extend to any suits in law, or equity, commenced or prose¬ 
cuted against one of the United States by citizens of an¬ 
other State, or by citizens or subjects * of any foreign 
State.” 12 

The bill providing for the Amendment of the Constitu¬ 
tion passed the Senate on the fourteenth of January, 1794, 
and passed the House of Representatives on March fourth 
the same year, after a number of efforts had been made to 
amend it. Its ratification was announced on the eighth of 

ii 2 Dallas, 419. 


12 Annals (2 Cong.) 651. 


CONSTITUTION OF THE UNITED STATES 


201 


January, 1798, five years after the decision referred to in 
Chisholm v. Georgia. 

Mr. Justice Miller in United States v. Lee, 13 in discussing 
the liability of a sovereign to be sued, used this language: 

“What were the reasons which forbid that the King 
should be sued in his own court, and how do they apply 
to the political body corporate which we call the United 
States of America f As regards the King, one reason given 
by the old judges was the absurdity of the King’s sending 
a writ to himself to command the King to appear in the 
King’s court. No such reason exists in our government, 
as process runs in the name of the President, and may 
be served on the Attorney General, as was done in Chis¬ 
holm v. Georgia. Nor can it be said that the Government 
is degraded by appearing as a defendant in the courts of 
its own creation, because it is constantly appearing as a 
party in such courts, and submitting its rights as against 
the citizen to their judgment. 

“Mr. Justice Gray, of the Supreme Court of Massachu¬ 
setts, in an able and learned opinion which exhausts the 
sources of information on this.subject says: 4 The broader 
reason is, that it would be inconsistent with the very idea 
of supreme executive power, and would endanger the per¬ 
formance of the public duties of the sovereign to subject 
him to repeated suits as a matter of right at the will of 
any citizen, and to submit to the judicial tribunals the con¬ 
trol and disposition of his public property, his instruments 
and means of carrying on his government in war and in 
peace, and the money in his treasury.’ As no person in 
this Government exercises supreme executive power, or 
performs the public duties of a sovereign, it is difficult 
to see on what solid foundation of principle the exemption 
from liability to suit rests. It seems most probable that 
it has been adopted in our courts as a part of the gen¬ 
eral doctrine of publicists, that the Supreme Power in every 
State, wherever it may reside, shall not be compelled, by 
process of courts of its own creation, to defend itself from 
assaults in those courts. 

“It is obvious that in our system of jurisprudence the 
principle is as applicable to each of the States as it is to 
the United States, except in those cases where by the Con¬ 
stitution a State of the Union may be sued in this court. 

is 106 U. S. 196, 206, 207, 


202 


CONSTITUTION OF THE UNITED STATES 


“That the doctrine met with a doubtful reception in the 
early history of this court may be seen from the opinions 
of two of its justices in the case of Chisholm v. Georgia, 
where Mr. Justice Wilson, a member of the Convention 
which framed the Constitution, after a learned examina¬ 
tion of the laws of England and other States and kingdoms, 
sums up the result by saying: ‘We see nothing against, 
but much in favor of, the jurisdiction of this court over 
the State of Georgia, a party to this cause.’ Mr. Chief 
Justice Jay also considered the question as affected by the 
difference between a republican State like ours and a per- 
sonal sovereign, and held that there is no reason why a 
State should not be sued, though doubting whether the 
United States would be subject to the same rule.” 

In the celebrated case of Cohens v. Virginia, 14 Mr. Chief 
Justice Marshall said of this Amendment: 

“That its motive was not to maintain the sovereignty 
of a State from the degradation supposed to attend a com¬ 
pulsory appearance before the tribunal of the Nation, may 
he inferred from the terms of the Amendment. It does 
not comprehend controversies between two or more States, 
or between a State and a foreign State. The jurisdiction 
of the court still extends to these cases; and in these a 
State mav still be sued. We must ascribe the Amendment, 
then, to some other cause than the dignity of a State. There 
is no difficulty in finding this cause. Those who were in¬ 
hibited from commencing a suit against a State, or from 
prosecuting one which might be commenced before the 
adoption of the Amendment, were persons who might prob¬ 
ably be its creditors. There was not much reason to fear 
that foreign or sister States would be creditors to any 
considerable amount, and there was reason to retain the 
jurisdiction of a court in those cases, because it might be 
essential to the preservation of peace. The Amendment, 
therefore, extended to suits commenced or prosecuted by 
individuals, but not to those brought by States.” 

§ 135. Rule for Determining Whether a Suit Is Against 
a State. The question whether a particular suit is one 
against a State within the provisions of this Amendment 
depends upon the same principle which determined whether 
the particular suit is one against the United States. 15 

14 6 Wheaton, 264, 406, 407. is 167 U. S. 204, 213. 


CONSTITUTION OF THE UNITED STATES 203 

So it was held that the Eleventh Amendment not only 
covers suits brought against a State by name but against 
its officers, agents, and representatives, where the State is 
the real party against which relief was asked, though it is 
not named as a defendant in the action. 16 

Said Mr. Chief Justice Waite: 

“The evident purpose of the Amendment . . . was 
to prohibit all suits against a State by or for citizens of 
other States, or aliens, without the consent of the State 
to be sued, and in our opinion, one State cannot create a 
controversy with another State, within the meaning of 
that term as used in the judicial clauses of the Constitu¬ 
tion, by assuming the prosecution of debts owing by the 
other State to its citizens.’’ 17 

It seems to be established as a rule that a suit brought 
against a State officer will be a suit against the State itself 
if it develops that it is the real party in interest. This 
rule makes the interest the State has in the litigation the 
test of its liability and suability, but unless the State is 
the real party in interest, it cannot be sued by merely suing 
its officers. 

Justice Harlan in the case of Fitts v. McGhee, 18 said on 
this question: 

“The constitutionality of every act passed by the legis¬ 
lature could be tested by a suit against the Governor and 
the Attorney General, based upon the theory that the for¬ 
mer as the executive of the State was, in a general sense, 
charged with the execution of all its laws, and the latter, 
as Attorney General, might represent the State in litiga¬ 
tion involving the enforcement of its statutes. That would 
be a very convenient way for obtaining a speedy judicial 
determination of questions of Constitutional law which may 
be raised by individuals, but it is a mode which cannot be 
applied to the States of the Union consistently with the 
fundamental principle that they cannot, without their as¬ 
sent, be brought into any court at the suit of private 
persons.” 

16 C. & N. W. Ry. Co. V. Dev, 35 Fed. Rep. 869. 

17 108 U. S. 76, 91. 

is 172 U. S. 516, 530. 


204 : 


CONSTITUTION OF THE UNITED STATES 


So, it lias been held where purchases have been made by 
the officers of a State for the benefit of a business in which 
the State is engaged, a suit against the officers of the State 
in such case is a suit against the State. 19 On the contrary it 
has been held that an application for injunction against the 
Attorney General of a State did not necessarily make it a 
suit against the State. 20 In Gunther v. Atlantic Coast 
Line, 21 the following rules were established: 

“In view of the prohibitions of the Eleventh Amend¬ 
ment to the Constitution of the United States, a State 
without its consent, may not be sued by an individual in a 
Circuit Court of the United States. 

“A suit against State officers to enjoin them from enforc¬ 
ing a tax alleged to be in violation of the Constitution of 
the United States is not a suit against a State within the 
prohibition of the Eleventh Amendment. 

“A suit against individuals to prevent them as officers 
of a State from enforcing an unconstitutional enactment 
to the injury of the rights of the plaintiff, is not a suit 
against the State within the meaning of that Amendment. 

“Although a State may not be sued without its consent, 
such immunity is a privilege which may be waived. Hence, 
where a State voluntarily becomes a party to a cause and 
submits its rights for judicial determination, it will be 
bound thereby and cannot escape the result of its own 
voluntary act by invoking the prohibitions of the Eleventh 
Amendment. ’’ 

Notwithstanding the numerous decisions upon the ques¬ 
tion as to what is a suit against a State it must be admitted 
that the matter is involved in doubt since no fixed and 
definite test has been laid down by the courts. 

An eminent constitutional writer has recently said on this 
subject: 

“A survey of the cases, and of the reasonings of the 
courts, too painfully discloses the absence of a clear and 
definite criterion for deciding when a suit is to be deemed 
a suit against a State. It need not be named as defend- 

19 Murray v. Wilson Distilling Co., 213 U. S. 151, 269. 

200 U. S. 273, 283; 202 McNeill v. So. Ry. Co. and So. Ry. Co. v. McNeill, 
IT. S. 543; 209 Ex parte Young, U. S. 123. 

2 i 200 IT. S. 273, 283. 


CONSTITUTION OF THE UNITED STATES 


205 


ant. Its agents or officers may be so far identified with 
it, that a suit against them will be virtually a suit against 
it. Whether they are or not, ought not to depend on their 
dignity. There is no valid reason for saying that the gov¬ 
ernor is the State, any more than that the other officers 
or agents are. The nature of the right contested is a bet¬ 
ter test. If the State will be deprived of the possession 
of property which it holds through the defendant, if the 
plaintiff prevails; if a State statute will be explicitly de¬ 
clared null and its execution by the appropriate officer ar¬ 
rested, if the plaintiff is to succeed, the suit is practically 
a suit against the State. But neither these criteria, nor 
any other, can be found consistently enforced in the 
decisions.” 22 

§ 136. What Is Not a Suit Against a State. It has been 
held that where a suit was brought against the members of 
a Railroad Commission of a State by a company established 
in another State, it was not a suit against the first State. 23 
Nor is a suit by a citizen of another State against a State 
officer, for enforcing a State statute, a suit against the State 
where the officer resides. 24 

In his famous letter to Judge Roane, written May 6, 1821, 
Mr. Madison has the following comment on this Amend¬ 
ment : 

“On the question relating to involuntary submissions of 
the States to the tribunal of the Supreme Court, the court 
seems not to have adverted at all to the expository lan¬ 
guage when the Constitution was adopted, nor to that of 
the Eleventh Amendment, which may as well import that 
it was declaratory as that it was restrictive of the mean¬ 
ing of the original text. It seems to be a strange reason¬ 
ing, also, that would imply that a State, in controversies 
with its own citizens, might have less of sovereignty than 
in controversies with foreign individuals, by which the 
National relations might be affected. Nor is it less to be 
wondered at that it should have appeared to the court that 
the dignity of a State was not more compromised by being 
made a party against a private person than against a co¬ 
ordinate party. 

22 Prof. William Triekett, American Law Review, vol. 41. 383. 

23 203 Miss. R. R. Com. v. Ill. Cent. R. R., U. S. 340. 

24 Gunther v. Atl. Coast Line, 200 U. S. 273, 283. 


206 


CONSTITUTION OF THE UNITED STATES 


“The judicial power of the United States over cases 
arising under the Constitution must be admitted to be a 
vital part of the system. But that there are limitations 
and exceptions to its efficient character, is among the ad¬ 
missions of the court itself. The Eleventh Amendment 
introduces exceptions, if there were none before. A liberal 
and steady course of practice can alone reconcile the sev¬ 
eral provisions of the Constitution literally at variance with 
each other, of which there is an example in the treaty 
power and the legislative power on subjects, to which both 
are extended by the words of the Constitution. It is par¬ 
ticular^ incumbent, in taking cognizance of cases arising 
under the Constitution, and in which the laws and rights 
of the States may be involved, to let the proceedings touch 
individuals only. Prudence enjoins this, if there were no 
other motive, in consideration of the impracticability of 
applying coercion to States.” 25 

So, it was held that officers of a State whose duties require 
them to enforce the statutes of the State and who were about 
to begin proceedings, to enforce an unconstitutional statute, 
which violates the Federal Constitution, may be enjoined by 
a Federal court of equity, and such proceeding will not be 
prohibited by the Eleventh Amendment. 26 

In Herndon v. Chicago E. I. & P. Ey., 27 the court said: 

“An action brought to enjoin an officer of a State from 
enforcing the laws thereof, on the ground that they violated 
the Constitution of the United States was held to be not an 
action against a State under the Eleventh Amendment.” 

25 Writings of Madison, vol. 3, 221, 222. 

26 West. U. Tel. Co. v. Andrews, 216 U. S. 165. 

27 218 U. S. 135. 


CHAPTER XV 


SCOPE OF THE TWELFTH AND THIRTEENTH 

AMENDMENTS 

TWELFTH AMENDMENT 

“The Electors shall meet in their respective States, and 
vote by ballot for President and Vice President, one of 
whom, at least, shall not be an inhabitant of the same State 
with themselves; they shall name in their ballots the per¬ 
son voted for as President, and in distinct ballots the per¬ 
son voted for as Vice President, and they shall make dis¬ 
tinct lists of all persons voted for as President, and of all 
persons voted for as Vice President, and of the number 
of votes for each, which lists they shall sign and certify, 
and transmit sealed to the seat of the Government of the 
United States, directed to the President of the Senate— 
The President of the Senate shall, in the presence of the 
Senate and House of Representatives, open all the certifi¬ 
cates and the votes shall then be counted—The person 
having the greatest number of votes for President, shall 
be the President, if such number be a majority of the 
whole number of Electors appointed; and if no person have 
such majority, then from the persons having the highest 
numbers not exceeding three on the list of those voted for 
as President, the House of Representatives shall choose 
immediately, by ballot, the President. But in choosing the 
President, the votes shall be taken by States, the repre¬ 
sentation from each State having one vote; a quorum for 
this purpose shall consist of a member or members from 
two-thirds of the States, and a majority of all the States 
shall be necessary to a choice. And if the House of Rep¬ 
resentatives shall not choose a President whenever the 
right of choice shall devolve upon them, before the fourth 
day of March next following, then the Vice President shall 
act as President, as in the case of the death or other Con¬ 
stitutional disability of the President. The person having 
the greatest number of votes as Vice President shall be 
the Vice President, if such number be a majority of the 
whole number of Electors appointed, and if no person have 

207 



208 


CONSTITUTION OF THE UNITED STATES 


a majority, then from the two highest numbers on the list, 
the Senate shall choose the Vice President; a quorum for 
the purpose shall consist of two-thirds of the whole num¬ 
ber of Senators, and a majority of the whole number shall 
be necessary to a choice. But no person Constitutionally 
ineligible to the office of President shall be eligible to that 
of Vice President of the United States.’’ 

§ 137. History. This Amendment superseded Clause 3, 
Section 1, of Article 2 of the original Constitution, which 
was in force from the time the Constitution was adopted 
until the 25th of September, 1804, being a period of fifteen 
years and which is inserted here that it may be contrasted 
with the Amendment: 

“The Electors shall meet in their respective States, and 
vote by Ballot for two Persons, of whom one at least shall 
not be an Inhabitant of the same State with themselves. 
And they shall make a List of all the Persons voted for, 
and of the Number of Votes for each; which List they shall 
sign and certify, and transmit sealed to the Seat of the Gov¬ 
ernment of the United States, directed to the President of 
the Senate. The President of the Senate shall, in the pres¬ 
ence of the Senate and House of Representatives, open all 
the Certificates, and the Votes shall then be counted. The 
Person having the greatest Number of Votes shall be the 
President, if such Number be a Majority of the whole Num¬ 
bers of Electors appointed; and if there be more than one 
who have such Majority, and have an equal Number of 
A r otes, then the House of Representatives shall immediately 
chuse by Ballot one of them for President; and if no Per¬ 
son have a Majority, then from the five highest on the 
List the said House shall in like Manner chuse the Presi¬ 
dent. But in chusing the President, the Azotes shall be 
taken by States, the Representation from each State having 
one A r ote; A quorum for this Purpose shall consist of a 
Member or Members from two-thirds of the States, and a 
Majority of all the States shall be necessary to a Choice. 
In every Case, after the Choice of the President, the Person 
having the greatest Number of Azotes of the Electors shall 
be the ATce President. But if there should remain two 
or more who have equal Votes, the Senate shall choose 
from them by Ballot the Vice President.” 

The Amendment undoubtedly grew out of the contest for 


CONSTITUTION OF THE UNITED STATES 


209 


the presidency between Mr. Jefferson and Mr. Burr in 1800, 
although the original provision in the Constitution which 
prescribed the manner of electing the President and Vice 
President was never satisfactory. The Amendment under 
consideration in its original form was introduced in the 
Senate on the 21st of October, 1803, by a Senator from New 
York. It was debated in the Senate until the second of 
December following its introduction, when it passed that 
body. During the progress of the debate it was amended to 
read as in its present form. On December 8,1803, it passed 
the House of Representatives by a vote of eighty-three yeas 
to forty-two nays after several attempts to amend it had 
been defeated. It was ratified by the requisite number of 
States in 1804, but some of the States opposed it and the 
States of Delaware, Connecticut, and Massachusetts re¬ 
jected it as being “unwise, unjust and unconstitutional.’’ 1 

Opposition of Gouverneur Morris. Mr. Gouverneur Mor¬ 
ris, who had been one of the leading and most brilliant 
members of the Constitutional Convention, was a member 
of the United States Senate from New York when the 
Amendment was voted on in that body, and voted against 
it. After casting his vote he addressed the following letter 
to the President of the New York Senate and the Speaker 
of the New York Assembly, in which he gave his reasons for 
his vote: 


“Washington, December 25, 1802. 

“Sir: On the twenty-fourth of February last I commu¬ 
nicated to the Senate of the United States the resolutions, 
which you did me the honor to transmit. On the third of 
May a resolution was brought up from the House of Rep¬ 
resentatives, embracing the latter part of that, which the 
State of New York had proposed, viz, that in all future 
elections of President and Vice President, the persons voted 
for should be particularly designated, by declaring which 
is voted for as President and which as Vice President. On 
the question, my vote was in the negative; and had it been 
otherwise, the resolution would have passed. 

“Having thus stated the facts, it may not be improper 

i Ames, Amendments, 77, 78. 


210 


CONSTITUTION OF TIIE UNITED STATES 


to trouble you with some of the reasons, which governed 
my decision. 

“First, I am opposed to Amendments, on the general 
ground that changing the articles of a Constitutional com¬ 
pact lessens that respect for it, which is a main support 
of free governments. 

“Secondly, I am opposed, because it is, generally speak¬ 
ing, better to bear an evil, which we know, than hazard 
those which we are unacquainted with. 

“Thirdly, I am opposed, because the present mode seems 
preferable to that which is proposed. 

“When this Article was under consideration in the Na¬ 
tional Convention it was observed, that every mode of elect¬ 
ing the chief magistrate of a powerful nation hitherto 
adopted is liable to objection. The instances where vio¬ 
lence has been used, and murders committed are numerous; 
those, in which artifice and fraud have succeeded against 
the general wish and will, are innumerable. And hence it 
was inferred, that the mode least favorable to intrigue and 
corruption, that in which the unbiased voice of the people 
will be most attended to, and that which is least likely to 
terminate in violence and usurpation, ought to be adopted. 
To impress conviction on this subject, the case of Poland 
was not unaptly cited. Great and ambitious Princes took 
part in the election of a Polish king. Money, threats, and 
force, were employed; violence, bloodshed, and oppression, 
ensued; and now that country is parceled out among the 
neighboring potentates, one of whom was but a petty Prince 
two centuries ago. 

“The evils which have been felt in the present mode of 
election, were pointed out to the Convention; but, after 
due advisement, the other mode appeared more exception¬ 
able. Indeed, if the present be changed, it might be better 
to abolish the office of Vice President, and leave to legisla¬ 
tive provision the case of a vacancy in the seat of the first 
magistrate. 

“The Convention was aware, that every species of trick 
and contrivance would be practiced by the ambitious and 
unprincipled. It was, therefore, conceived, that if in elec¬ 
tions the President and Vice President were distinctly des¬ 
ignated, there would generally be a vote given for one of 
only two rival Presidents, while there would be numerous 
candidates for the other office; because he, who wished to 
become President, would naturally connect himself with 
some popular man of each particular district, for the sake 


211 


CONSTITUTION OF THE UNITED STATES 


of Ins local influence, so that the Vice President would be 
but as a bait to catch State gudgeons. The person chosen 
would have only a partial vote, be perhaps unknown to the 
greater part of the community, and probably unfit for those 
duties, which the death of a President might call on him to 
perform. 

The Convention not only foresaw, that a scene might 
take place similar to that of the last presidential election, 
but even supposed it not impossible, that at some time or 
other a person admirably fitted for the office of President 
might have an equal vote with one totally unqualified, and 
that, by the predominance of faction in the House of Kep- 
resentatives, the latter might be preferred. This, which is 
the greatest supposable evil of the present mode, was calmly 
examined, and it appeared that, however prejudicial it 
might be at the present moment, a useful lesson would 
result from it for the future, to teach contending parties 
the importance of giving both votes to men fit for the first 
office. 

“This, Sir, is one great object contemplated by the Con¬ 
stitution. Whether it could be obtained by altering the 
mode of election deserves a serious attention. The other 
great object is to defeat the fraud, the force, the corrup¬ 
tion, which may be used to place bad men in high authority. 

“After the most mature reflection of which my mind is 
capable, I am persuaded that the present mode is prefer¬ 
able to that, which is proposed in lieu of it, and my voice 
has been given according to my conviction. I have the 
honor to be, etc. 

4 ‘ Gouverneur Morris. ’ ’ 2 

Previous Methods of Choosing Electors. In the early 
history of the Eepublic, presidential electors were chosen 
in different ways. In the presidential election of 1796, 
Massachusetts, North Carolina, Kentucky, Virginia, Ten¬ 
nessee, and Maryland chose their electors from Congres¬ 
sional districts. In 1803, a number of the State legisla¬ 
tures by resolution which they adopted suggested that 
method of electing the electors. Mr. Hamilton favored this 
method and so did Mr. Wilson, Mr. Gallatin, and Mr. 
Jefferson. 

In the course of time different methods were adopted 

2 Sparks , Life of Gouverneur Morris, vol. 3, 173, 176. 


212 


CONSTITUTION OP THE UNITED STxlTES 


for choosing electors by different States and by different 
districts in the same State. Six States in 1824, chose their 
electors through their legislatures, and twelve States chose 
theirs by general ticket. Subsequently the method of 
choosing electors by a general ticket became popular, and 
in 1828, there was proposed an amendment to the Con¬ 
stitution that that should be the plan by which they should 
be elected in each State throughout the United States to 
the end that there might be uniformity in such elections. 3 

Mr. Madison has left the following important statement 
concerning this subject: 

1 ‘ The district mode was mostly, if not exclusively, in view 
when the Constitution was framed and adopted, and was 
exchanged for the general ticket and the legislative elec¬ 
tion as the only expedient for baffling the policy of the 
particular States which had set the example.’ ’ 4 

§ 138. Comparison of Old and New Plans. The original 

purpose which influenced the Convention to provide for the 
election of President and Vice President by electors has 
largely been abandoned in practice. By virtue of the orig¬ 
inal clause of the Constitution each member of the Electoral 
College voted for two persons, but did not name his choice 
for President or Vice President, but the person became 
President who received the greatest number of votes in 
the Electoral College if the number was a majority of the 
electors under the Constitution. If more than one person 
had received a majority of the votes of the Electoral Col¬ 
lege and an equal number of votes with some one else, then 
the election went to the House of Representatives, who 
immediately chose one of them President, but if no person 
had received a majority of such votes, then the House of 
Representatives was to choose a President from the five 
having the highest vote. The vote in the House of Repre¬ 
sentatives should be by States, each State having one vote, 
and a quorum consisted of a member or members from two- 
thirds of the States, and a majority of all the States was 

3 Ames, Amendments, 85. 

4 Writings of Madison, vol. 3, 333, 334. 


CONSTITUTION OF THE UNITED STATES 


213 


necessary to a choice. After the President was elected 
the person having the greatest number of votes was to be 
the Vice President, but if two or more persons had an 
equal number of votes, the Senate was to choose a Vice 
President by ballot from the candidates who had been 
voted for. 

All this was changed by the Amendment under consid¬ 
eration. Under its provisions each member of the Elec¬ 
toral College votes directly by ballot for President and 
Vice President. The one who receives the highest number 
of votes for President, if that number be a majority of the 
whole number of electors, becomes President, but if no 
such majority has been received by any person, it then 
becomes the duty of the House of Representatives to choose 
the President by ballot from the three candidates having 
the highest number of votes for President. In such case 
the vote is taken by States as it was under the original Con¬ 
stitution, the members from each State being entitled to 
only one vote. A quorum for this purpose consists of a 
member or members from two-tliirds of the States, and a 
majority of all the States shall be necessary to make a 
choice. The person having the greatest number of votes 
for Vice President under the Amendment shall be Vice 
President, providing his vote is a majority of all the elec¬ 
tors appointed; but if no person has such majority 
then the Senate shall elect the Vice President from the two 
candidates highest on the list. A quorum of the Senate 
for this purpose consists of two-thirds of the whole num¬ 
ber of Senators, and a majority of the whole number shall 
be necessary to a choice. 

By comparison of the Amendment with the provision of 
the original Constitution it will be observed that there is 
much similarity in the two plans. The greatest difference 
consists in the fact that under the original provision mem¬ 
bers of the Electoral College did not vote directly for 
President and Vice President, while under the Amendment 
they do. Again, under the Amendment, if the House of 
Representatives must choose the President, the choice of 


214 


CONSTITUTION OF THE UNITED STATES 


the House must come from the three candidates having the 
highest number of votes, whereas under the original pro¬ 
vision of the Constitution, the choice came from the five 
candidates having the highest number of votes. 

The Constitution does not require that members of the 
Electoral College shall elect any particular person or candi¬ 
date President or Vice President ; on the other hand, they 
are absolutely free to elect any eligible person to either of 
these positions. But should the election of the President 
go to the House of Representatives, or that of the Vice 
President to the Senate, then there is a different situation. 
In that event the members of the House of Representatives 
can elect no one President except one of the three candi¬ 
dates who received the highest number of votes for Presi¬ 
dent in the Electoral College, and the Senate can elect a 
\ T ice President only from the two candidates having the 
highest number of votes for Vice President in the Electoral 
College. 

Members of the Electoral College are those persons who 
are elected in each State to cast the vote of the State for 
President and Vice President. They have no other function 
than to cast, certify, and transmit the vote of the State. 
Each State can have as many electors as it has Senators and 
members of the House of Representatives. They are all 
elected on the same day, viz, the first Tuesday after the first 
Monday in November. There is no special qualification 
prescribed in the Constitution for an Elector, but it does 
provide that no Senator in Congress or any person holding 
an office of trust or profit in the United States can be an 
Elector. No other persons are disqualified from holding 
this position; but it has been held that an elector must pos¬ 
sess the qualifications of a voter under the State Statute. 5 

The Electors are not officers of the United States. 6 

THIRTEENTH AMENDMENT 

Section 1. “Neither slavery nor involuntary servitude, 
except as a punishment for crime whereof the party shall 

5 193 Pope v. Williams, U. S. 621, 633. 

6 134 In re Green, U. S. 377, 379. 


CONSTITUTION OF THE UNITED STATES 215 

have been duly convicted, shall exist within the United 
States, or any place subject to their jurisdiction. 

Section 2. “ Congress shall have power to enforce this 

article by appropriate legislation.” 

§139. History. After the ratification of the Twelfth 
Amendment, it was sixty-one years before another Amend¬ 
ment passed Congress and was submitted to the States for 
ratification. 

This was the Thirteenth Amendment. It grew out of the 
great questions of the Civil War, and followed closely upon 
the emancipation proclamation of President Lincoln. It is 
so connected with the history of the Government incident 
to the close of the great Civil War that no attempt will be 
made to deal with it in this connection at any great length. 

On the 14th of December, 1863, James M. Ashley, a 
Representative from Ohio, introduced a bill in the House of 
Representatives providing for the submission to the sev¬ 
eral States a proposition to amend the National Constitu¬ 
tion which would prohibit slavery or involuntary servitude 
in the United States. 

On the same day, Mr. Wilson, a member of the House of 
Representatives from Iowa, offered a joint resolution to 
the same effect. The bill and resolution together were 
referred to the judiciary committee, but before that com¬ 
mittee could report on the matter, on January 11, 1864, 
John B. Henderson, a United States Senator from the 
State of Missouri, introduced a joint resolution in that body 
which provided: 

“Slavery or involuntary servitude, except as punishment 
for crime, shall not exist in the United States.” 

On the 8th of February, 1864, Senator Charles Sumner 
introduced the following joint resolution in the Senate: 

“Everywhere within the limits of the United States, and 
of each State or Territory thereof, all persons are equal 
before the law, so that no person can hold another as a 
slave. ’’ 

This resolution was also referred to the committee on the 
judiciary. Two days after that the committee reported 


216 


CONSTITUTION OF THE UNITED STATES 


that the Amendment under consideration be submitted as 
the Thirteenth Amendment to the Constitution of the 
United States, and this passed Congress. 

The Amendment was largely based upon that provision 
of the Ordinance of 1787, which provided: 

‘‘ There shall be neither slavery nor involuntary servi¬ 
tude in the States or Territories otherwise than in punish¬ 
ment of crime whereof the parties shall have been duly 
convicted. ’ ’ 

The report of the Committee was the cause of a long and 
animated debate, in which great opposition to the language 
of the proposed Amendment was made by Senator Sumner. 
Two months after the report of the committee had been 
made in the Senate, to-wit, on the 8th of April, 1864, the 
Amendment was passed in the Senate by thirty-eight yeas 
to six nays. 7 

Amendment Passes Senate , Lost in House. After passing 
the Senate the Amendment was taken up in the House, and 
on the 15th of June of the same year passed that body by 
a vote of ninety-three yeas to sixty-five nays, twenty-three 
members not voting. Having failed to secure the requisite 
two-thirds majority, the Amendment was consequently lost. 8 

Reconsideration of Vote. After Congress had recon¬ 
vened, on the 15th of December, 1864, Mr. Ashley notified 
the House that on Friday, the 6th of January, 1865, he 
would call up the motion to reconsider the vote, by which 
the Amendment had been defeated, he, as he said, having 
voted against the resolution in order that he might move 
i ts reconsideration. The motion of Mr. Ashley precipitated 
a prolonged debate, but the House on the 21st of that 
month, by a vote of one hundred and twelve yeas to fifty- 
seven nays, passed Mr. Ashley’s resolution, and on the same 
day passed the Amendment by a vote of one hundred and 
nineteen yeas to fifty-six nays. In this way the first of the 
great Amendments to the Constitution which resulted from 

7 Cong. Globe, Pt. 2, 1st Sess., 38 Cong., 1490. 

s Cong. Globe, Pt. 4, 1st Sess., 38 Cong., 2995. 


CONSTITUTION OF THE UNITED STATES 217 

the great Civil War between the northern and southern sec¬ 
tions of the Union was passed by Congress. It is said: 

“The announcement that the Amendment had passed 
was received by the House and by the spectators with an 
outburst of enthusiasm. The members on the Republican 
side of the House instantly sprang to their feet, and regard¬ 
less of parliamentary rules, applauded with cheers and clap¬ 
ping of hands. The example was followed by the male 
spectators in the galleries, which were crowded to excess, 
who waved their hats and cheered loud and long, while 
the ladies, hundreds of whom were present, rose in their 
seats and waved their handkerchiefs, participating in and 
adding to the general excitement and intense interest of 
the scene. This lasted for several minutes.” 0 

Mr. Ingersoll, a member of the House, then arose and 
said: 

“Mr. Speaker, in honor of this immortal and sublime 
event I move that the House do now adjourn.’’ 

Ratification of Amendment. The announcement by the 
Secretary of State that the Amendment had been ratified 
by a sufficient number of States occurred on the 18th of 
December, 1865. 

The purpose which the Amendment intended to accom¬ 
plish was to abolish slavery in every form in the United 
States and in every place under the control of the United 
States. 

§ 140. Effect of Amendment. Mr. Justice Swayne in 
United States v. Rhodes, 10 in reviewing this Amendment 
said: 

“It trenches clirectlv upon the power of the States and 
of the people of the States. It is the first and only instance 
of a change of this character in the organic law.^ It de¬ 
stroyed the most important relation between capital and 
labor in all the States where slavery existed. It affected 
deeply the fortunes of a large portion of their people. It 
struck out of existence millions of property. The measure 
was the consequence of a strife of opinions, and a conflict 

9 Cong. Globe, Pt. 1, 2d Sess., 38 Cong., 531. 

iol Abbott’s U. S. Report, 28, 37, 38, 56. 


218 CONSTITUTION OF THE UNITED STATES 

of interests, real or imaginary, as old as tlie Constitution 
itself. These elements of discord grew in intensity. Their 
violence was increased by the throes and convulsions of a 
civil war. The impetuous vortex finally swallowed up the 
evil, and with it forever the power to restore it. Those 
who insisted upon the adoption of this Amendment were 
animated by no spirit of vengeance. They sought security 
against the recurrence of a sectional conflict. They felt 
that much was due to the African race for the part it had 
borne during the war. They were also impelled by a sense 
of right and by a strong sense of justice to an unoffending 
and long suffering people. These considerations must not 
be lost sight of when we come to examine the Amendment 
in order to ascertain its proper construction. 

4 4 It reversed and annulled the original policy of the Con¬ 
stitution, which left it to each State to decide exclusively 
for itself whether slavery should or should not exist as a 
local institution, and what disability should attach to those 
of a servile race within its limits.” 

§ 141. Meaning of Involuntary Servitude. The meaning 
of this term is discussed by Mr. Justice Miller in the 
Slaughter House Cases, in speaking for a majority of the 
court. 11 He said: 

“That a personal servitude was meant is proved by the 
use of the word 4 involuntary ’, which can only apply to 
human beings. The exception of servitude as a punishment 
for crime gives an idea of the class of servitude that is 
meant. The word servitude is of larger meaning than slav¬ 
ery, as the latter is popularly understood in this country, 
and the obvious purpose was to forbid all shades and con¬ 
ditions of African slavery. It was very well understood 
that in the form of apprenticeship for long terms, as it had 
been practiced in the West India Islands—on the abolition 
of slavery by the English government—or by reducing the 
slaves to the condition of serfs attached to the plantation, 
the purpose of the article might have been evaded, if only 
the word slavery had been used. . . . 

“M e do not say that no one else but the negro can share 
in this protection. Both the language and spirit of these 
articles are to have their fair and just weight in any ques¬ 
tion of construction. Undoubtedly while negro slavery 
alone was in the mind of the Congress which proposed 

ii 16 Wall., 36, 69, 72. 


CONSTITUTION OF THE UNITED STATES 


219 


the Thirteenth Article, it forbids any other kind of slavery, 
now. or hereafter. If Mexican peonage or the Chinese 
coolie labor system shall develop slavery of the Mexi¬ 
can or Chinese race within our territory, this Amendment 
may safely be trusted to make it void. And so if other 
rights are assailed by the States which properly and nec¬ 
essarily fall within the protection of these articles, that 
protection will apply, though the party interested may not 
be of African descent. ’ ’ 

Illustrations. Peonage, which is defined to be “a status 
or condition of compulsory service, based upon the indebt¬ 
edness of the peon to the master”, constitutes involuntary 
servitude. 12 And a law which provides that any person 
held to be a vagrant should be hired out at the door of 
the court house for six months, was declared to be invalid, 
as imposing imprisonment, involuntary servitude, and pun¬ 
ishment, without any charge, proof, or legislative enact¬ 
ment making the offense a crime. 13 So it was held that 
coercing alien seamen to labor on board a martial vessel 
against their w T ill was involuntary servitude within the 
terms of this provision. 14 

It was held that a statute which punished one who had 
made a written contract to work for another for a definite 
time, and who subsequently, without the consent of the 
other contracting party, and, without justifiable reason 
therefor, abandoned his contract and made a similar one 
with another person without telling him of his first contract, 
is contrary to this Amendment because it in effect estab¬ 
lished involuntary servitude. 15 

§ 142. Power to Enforce the Amendment. The second 
section of the Amendment confers upon Congress power to 
enforce it by appropriate legislation. In Clyatt v. United 
States, 10 after a review of many decisions and statutes on 
the subject of peonage, the Supreme Court through Mr. 
Justice Brewer said: 

12 Clyatt v. U. S., 197 U. S. 207, 215. 

is In re Thompson, 117 Mo. 83. 

ii In re Chung Fat et al., 96 Fed. "Rep. 202. 

is Texas & Pae. Ry. v. Marlor, 123 Fed, Rep. 691. 

i6 197 U. S. 207, 218. 


220 


CONSTITUTION OF THE UNITED STATES 


“It is not open to doubt that Congress may enforce the 
Thirteenth Amendment by direct legislation, punishing the 
holding of a person in slavery or in involuntary servitude, 
except as a punishment for crime. In the exercise of that 
power Congress has enacted these sections denouncing peon¬ 
age, and punishing one who holds another in that condi¬ 
tion of involuntary servitude. This legislation is not lim¬ 
ited to the Territories or other parts of the strictly Na¬ 
tional domain, but is operative in the States and wherever 
the sovereignty of the United States extends. We enter¬ 
tain no doubt of the validity of this legislation, or of its 
applicability to the case of any person holding another in 
a state of peonage, and this, whether there be municipal 
ordinance or State law sanctioning such holding. It oper¬ 
ates directly on every citizen of the Republic, wherever 
his residence may be.” 

The courts have held, however, that the Amendment is 
not broad enough in its provisions to control the admis¬ 
sion of persons to places of public amusements. Thus Mr. 
Justice Miller, in the Civil Rights Cases, 17 held there were 
thousands of free colored people in this country before the 
abolition of slavery, enjoying all the essentials of life, lib¬ 
erty, and property, the same as white citizens, yet no one 
at that time thought it was an invasion of his personal 
status as a free man because he was not admitted to all 
the privileges enjoyed by white citizens, or because he was 
subjected to discriminations in the enjoyment of accommo¬ 
dations in inns, public conveyances, and places of amuse¬ 
ment. Mere discriminations on account of race or color 
were not regarded as badges of slavery. On the whole, we 
are of opinion that no countenance of authority for the pas¬ 
sage of the law in question can be found in the Thirteenth 
Amendment of the Constitution. 

17 109 U. S. 3, 25. 


CHAPTER XVI 


SCOPE OF THE FOURTEENTH AND FIFTEENTH 

AMENDMENTS 

FOURTEENTH AMENDMENT 

i ‘ Section 1. All persons born or naturalized in the United 
States, and subject to the jurisdiction thereof, are citizens 
of the United States and of the State wherein they reside. 
No State shall make or enforce any law which shall abridge 
the privileges or immunities of citizens of the United 
States; nor shall any State deprive any person of life, lib¬ 
erty, or property, without due process of law; nor deny 
to any person within its jurisdiction the equal protection 
of the laws. 

4 ‘ Section 2. Representatives shall be apportioned among 
the several States according to their respective numbers, 
counting the whole number of persons in each State, ex¬ 
cluding Indians not taxed. But when the right to vote at 
any election for the choice of Electors for President and 
Vice President of the United States, Representatives in 
Congress, the Executive and Judicial Officers of a State, 
or the members of the Legislature thereof, is denied to 
any of the male inhabitants of such State, being twenty- 
one years of age, and citizens of the United States, or in 
any way abridged, except for participation in rebellion, or 
other crime, the basis of representation therein shall be 
reduced in the proportion which the number of such male 
citizens shall bear to the whole number of male citizens 
twenty-one years of age in such State. 

“Section 3. No person shall be a Senator or Representa¬ 
tive in Congress, or Elector of President and Vice Presi¬ 
dent, or hold any office, civil, or military, under the United 
States, or under any State, who having previously taken 
an oath, as a member of Congress, or as an officer of the 
United States, or as a member of any State legislature, or as 
an executive or judicial officer of any State, to support the 
Constitution of the United States, shall have engaged in 
insurrection or rebellion against the same, or given aid or 

221 


222 


CONSTITUTION OF THE UNITED STATES 


comfort to the enemies thereof. But Congress may by a 
vote of two-thirds of each House, remove such disability. 

“Section 4. The validity of the public debt of the United 
States, authorized by law, including debts incurred for 
payment of pensions and bounties for services in suppress¬ 
ing insurrection or rebellion, shall not be questioned. But 
neither the United States nor any State shall assume or pay 
any debt or obligation incurred in aid of insurrection or 
rebellion against the United States, or any claim for the 
loss or emancipation of any slave; but all such debts, obliga¬ 
tions, and claims shall be held illegal and void. 

“Section 5. The Congress shall have power to enforce, 
by appropriate legislation, the provisions of this article/’ 

§ 143. History. After the close of the Civil War in the 
United States, the political party which was in power in the 
country became convinced that it was necessary that the 
Federal Government should enact legislation in the inter¬ 
ests of the colored people, if they were to be protected in 
the political and personal rights which had been conferred 
upon them since the abolition of slavery. Since the war 
several States had passed laws which bore very hard on 
those who had been slaves, and wholly deprived them of 
certain rights which it was supposed had been conferred 
upon them by National legislation. 1 

There was passed in the House of Representatives on 
the 5th of December, 1865, a resolution providing that a 
joint committee consisting of fifteen members should be 
appointed, nine of whom should be Representatives and six 
of whom should be Senators, and who: 

“Should inquire into the condition of the States who 
formed the so-called Confederate States of America, and 
report whether they, or any of them, were entitled to be 
represented in either House of Congress, and until such 
report should be made and finally acted on by Congress 
no member should be received into either House from any 
of the so-called Confederate States.” 

One week later, on the 12th of December, the Senate 
began the consideration of the resolution, which had 

1 Slaughter House Cases, 16 Wall. 70. 


CONSTITUTION OF THE UNITED STATES 


223 

passed the House. In consequence of this, the resolution 
was amended so that it read: 

“That a joint committee of fifteen members shall he 
appointed, nine of whom shall be members of the House 
and six members of the Senate, who shall inquire into the 
condition of the States which formed the so-called Confed¬ 
erate States of America, and report whether they, or any 
of them, are entitled to be represented in either House of 
Congress; with leave to report at any time, by bill or 
otherwise .’ 9 

This Amendment was agreed to by the House of Repre¬ 
sentatives the day after it passed the Senate. The com¬ 
mittee consisted of the following Senators: William P. 
Fessenden, of Maine; James W. Grimes, of Iowa; Ira 
Harris, of New York; Jacob M. Howard, of Michigan; 
Reverdy Johnson, of Maryland, and George H. Williams, 
of Oregon. On behalf of the House it consisted of Thaddeus 
Stevens, of Pennsylvania; Eliliu B. Washburn, of Illinois; 
Justin S. Morrill, of Vermont; Henry Grider, of Kentucky; 
John A. Bingham, of Ohio; Roscoe Conkling, of New York; 
George S. Boutwell, of Massachusetts; Henry T. Blow, of 
Missouri, and Andrew J. Rogers, of New Jersey. 

On the 30th of April, 1866, nearly four months after it had 
been appointed, the committee submitted the following reso¬ 
lution and Amendment to the Constitution as a result of 
their investigations: 

“Be it resolved by the Senate and House of Representa¬ 
tives of the United States of America in Congress assem¬ 
bled (two-thirds of both Houses concurring), That the fol¬ 
lowing article be proposed to the Legislatures of the sev¬ 
eral States as an Amendment to the Constitution of the 
United States, which, when ratified by three-fourths of said 
Legislatures, shall be valid as part of the Constitution, 
namely: 

§144. Proposed Amendment. “Section 1. No State 
shall make or enforce any law which shall abridge the privi¬ 
leges or immunities of citizens of the United States; nor 
shall any State deprive any person of life, liberty, or prop- 


224 


CONSTITUTION OF THE UNITED STATES 


erty without due process of law, nor deny to any person 
within its jurisdiction the equal protection of the laws. 

“Section 2. Representatives shall be apportioned among 
the several States which may be included within this Union 
according to their respective numbers, counting the whole 
number of persons in each State, excluding Indians not 
taxed. But whenever in any State the elective franchise 
shall be denied to any portion of its male citizens not less 
than twenty-one years of age, or in any way abridged, ex¬ 
cept for participation in rebellion or other crime, the basis 
of representation in such State shall be reduced in the 
proportion which the number of such male citizens shall 
bear to the whole number of male citizens not less than 
twenty-one years of age. 

“Section 3. Until the fourth day of July, in the year 
of 1870, all persons who voluntarily adhered to the late 
insurrection, giving it aid and comfort, shall be excluded 
from the right to vote for Representatives in Congress, and 
for Electors for President and Vice President of the United 
States. 

“Section 4. Neither the United States nor any State 
shall assume or pay any debt or obligation already incurred, 
or which may hereafter be incurred, in aid of insurrection 
or of war against the United States, or any claim for com¬ 
pensation for loss of involuntary service or labor. 

“Section 5. The Congress shall have power to enforce, 
by appropriate legislation, the provisions of this article.” 2 

Debate on Article Proposed. Upon the introduction of 
this resolution and proposed article of Amendment, a long 
and acrimonious debate occurred in Congress which cov¬ 
ered the whole subject of the duty the Government owed 
those who had lately been slaves, and also the relation of 
the States recently in rebellion to the Government were 
thoroughly discussed. On the tenth of May following, a 
vote on the resolution and article was taken by the House 
of Representatives, and that body passed them, without 
making a change as they had been reported by the commit¬ 
tee, by a vote of one hundred and twenty-eight yeas to 
thirty-seven nays, nineteen members not voting. 

The resolution and article were then transmitted to the 

2 Cong. Globe, Pt. 3, 1st Sess., 39th Cong., 2286. 


CONSTITUTION OP THE UNITED STATES 225 

. 

! Senate, and there met with more resistance and were 
i finally defeated. 

; Reverdy Johnson, a Senator from Maryland, and who 
had been a member of the Committee in the Senate moved 
to strike out the third section of the Amendment as follows: 

“ Until the fourth day of July, in the year 1870, all per¬ 
sons. who voluntarily adhered to the late insurrection, giv¬ 
ing it aid and comfort, shall be excluded from the right to 
vote for Representatives in Congress, and for Electors for 
President and Vice President of the United States/ ’ 

And this motion was unanimously carried. 3 

Senator Howard of Michigan, who had also been a mem¬ 
ber of the joint committee from the Senate offered the fol¬ 
lowing Amendment, as a prefix to the first article thereof: 

“All persons born in the United States and subject to 
the jurisdiction thereof are citizens of the United States 
and of the States wherein they reside. ” 

And this Amendment was adopted. 

The words “or naturalized’’ which appear in the first 
line of the first section of the Amendment were suggested 
by Senator Fessenden of Maine, and were inserted without 
opposition. 

Section 2 of the first article as it passed the House of 
Representatives, read as follows: 

“Representatives shall be apportioned among the several 
States which may be included within this Union, according 
to their respective numbers, counting the whole number of 
persons in each State, excluding Indians not taxed. But 
whenever in any State the elective franchise shall be denied 
to any portion of its male citizens not less than twenty-one 
years of age, or in any way abridged, except for participa¬ 
tion in rebellion or other crime, the basis of representation 
in such State shall be reduced in the proportion which the 
number of such male citizens shall bear to the whole num¬ 
ber of male citizens not less than twenty-one years of age.” 

Amendments to Article. To this Senator Williams pro- 

s Cong. Globe, Pt. 3, 1st Sess., 39th Cong., 2869. 





226 CONSTITUTION OF THE UNITED STATES 

posed an Amendment which was debated at length, and 
which was finally modified to read as follows: 

“But whenever the right to vote at any election for the 
choice of Electors for President and Vice President of the 
United States, Representatives in Congress, the executive 
and judicial officers of a State, or members of the Legis¬ 
lature thereof,’’ etc. This Amendment was adopted, 
but the section as it had been amended met wdth vigorous 
opposition which w T as not confined to party lines in the 
Senate. Senator Howard especially opposed it, and sug¬ 
gested an Amendment which was defeated. He also moved 
to strike out the words “or in any way abridge,” which 
appear in the Amendment offered by Senator Williams, 
but this motion was also rejected, and the Amendment of 
Senator Williams was adopted by a vote of thirty yeas to 
eleven navs. 

Senator Howard then offered the following substitution 
as an Amendment to Sec. 3, which had been omitted from 
the original Amendment on Motion of Senator Johnson: 

“No person shall be a Senator or Representative in Con¬ 
gress, or an Elector of President and Vice President, or 
hold any office, civil or military, under the United States, 
or under any State, who, having previously taken an oath 
as a member of Congress, or an officer of the United States, 
or as a member of any State Legislature, or as an execu¬ 
tive or judicial officer of any State, to support the Consti¬ 
tution of the United States, shall have engaged in insur¬ 
rection or rebellion against the same, or given aid or com¬ 
fort to the enemies thereof; but Congress may by a vote 
of two-tliirds of each House, remove such disability.” 4 

Senator Clark offered the following as a substitute for 
Sections four and five as they had passed the House of 
Representatives, which was agreed to: 

“The validity of the public debt of the United States, 
authorized by law, including debts incurred for payment 
of pensions and bounties for services in suppressing insur¬ 
rection or rebellion, shall not be questioned. But neither 
the United States nor any State shall assume or pay any 

4 Cong. Globe, Pt. 3, 1st Sess., 39th Cong., 2869. 


CONSTITUTION OF THE UNITED STATES 


227 


debt or obligation incurred in aid of insurrection or rebel¬ 
lion against the United States, or any claim for the loss 
or emancipation of any slave; but all such debts, obliga¬ 
tions, and claims, shall be held illegal, and void.” 5 

Every section of the Amendment as it came from the 
House of Representatives was changed in the Senate except 
the last. 

The Amendments which had been offered to the Amend¬ 
ment as it came from the House of Representatives were 
voted upon and passed by thirty-three yeas as against 
eleven nays, five Senators being absent. The whole Amend¬ 
ment was then passed in the Senate and was sent back to 
the House where it w r as passed on the 13th of June, 1866, by 
a vote of one hundred and twenty yeas to thirty-two nays, 
thirty-two members not voting. 

§ 145. General Analysis of Amendment. This is the 
most important of all the Amendments to the Constitution. 
It has been considered by statesmen, judges, authors, and 
publicists as next to the Declaration of Independence in 
the security of personal liberty in the United States. Many 
works of great merit have been written about it, and 
as it would be impracticable here to do more than give 
a cursory glance at the provisions of the Amendment, the 
reader is respectfully referred to some of the works which 
have appeared concerning it. 6 

Definition of Citizenship. In delivering the opinion of 
a majority of the Court in the Slaughter House Cases, 
supra , Mr. Justice Miller in considering this Amendment 
said: 

“The next observation is that the distinction between 
citizenship of the United States and citizenship of a State 
is clearly recognized and established. Not only may a man 
be a citizen of the United States without being a citizen 
of a State, but an important element is necessary to con¬ 
vert the former into the latter. He must reside within the 

s Cong. Globe, Pt. 4, 1st Sess., 39th Cong., 3040. 

o Fourteenth Amendment by William P. Guthrie, of the New York Bar, and 
Judge Henry Brannon, of the Supreme Court of West Virginia, and Thorpe's 
Const. History of the United States, vol. 3. 


228 


CONSTITUTION OF THE UNITED STATES 


State to make him a citizen of it, but it is only necessary 
that he should be born or naturalized in the United States 
to be a citizen of the Union. 

“It is quite clear, then, that there is a citizenship of the 
United States, and a citizenship of a State, which are dis¬ 
tinct from each other, and which depend upon different 
characteristics or circumstances in the individual.” 

From this opinion Justices Field, Bradley, and Swayne 
dissented. 7 

It has been greatly criticized by jurists and statesmen, 
and Mr. Justice Moody in the late case of Twining v. New 
Jersey, 8 said of it: “It has never received universal assent 
by members of this court.” 

Scope of the Amendment. Mr. Justice Matthews, in 
Yick Wo v. Hopkins, said: 9 

4 ‘ The provisions of the Amendment are universal in their 
application, to all persons within the territorial jurisdic¬ 
tion, without regard to any differences of race, of color, 
or of nationality.” 

Though the Amendment was primarily intended to bene¬ 
fit the negro, it cannot be doubted that it confers the right 
of citizenship upon all other persons of whatever nation¬ 
ality or color, whether born or naturalized in the United 
States, who are subject to the jurisdiction thereof. 

§ 146. Analysis of First Section. Speaking of the 
Amendment in its relation to the subject of citizenship, 
Mr. Justice Gray, in United States v. Wong Kim Ark, 10 
declared that it contemplated two sources of citizenship 
and only two, birth and naturalization. Continuing, he 
said: 

“Citizenship by naturalization can only be acquired by 
naturalization under the authority and in the forms of law. 
But citizenship by birth is established by the mere fact 

7 Criticism of the opinion will be found in Burgess’s Political Science and 
Constitutional Law, vol. 1, 225, 228; in Blaine’s Twenty Years in Congress, 
vol. 2, 419, 420; and in Guthrie on the Fourteenth Amendment. 

s 211 U. S. 96. 

o 118 U. S. 356, 369. 

io 169 U. S. 649, 702. 


CONSTITUTION OF THE UNITED STATES 229 

of birth under the circumstances defined in the Constitu¬ 
tion. Every person born in the United States, and subject 
to the jurisdiction thereof, becomes at once a citizen of the 
United States, and needs no naturalization. A person born 
out of the jurisdiction of the United States can only become 
a citizen by being naturalized, either by treaty, as in the 
case of the annexation of foreign territory, or by authority 
of Congress, exercised either by declaring certain classes of 
persons to be citizens as in the enactments conferring citi¬ 
zenship upon foreign-born children of citizens, or by en¬ 
abling foreigners individually to become citizens by pro¬ 
ceedings in the judicial tribunals, as in the ordinary pro¬ 
visions of the naturalization acts.” 

Abridging Privileges or Immunities of Citizens . The 
first section of the Amendment expressly prohibits any 
State from making or enforcing any law which shall abridge 
the privileges or immunities of citizens of the United 
States. This is the first limitation upon the power of the 
States mentioned in the Amendment. 

What are privileges and immunities of citizens of the 
United States, has many times undergone judicial consid¬ 
eration. 

Mr. Justice Miller in the Slaughter House Cases, supra , 
said: 

“ Among the privileges and immunities of the citizens 
of the United States is the right which such citizen has to 
come to the seat of Government to assert any claim he 
may have against the Government, to transact any busi¬ 
ness he may have with the Government, to seek its pro¬ 
tection, to share its offices, to engage in administering its 
functions. Such citizen also has the right of free access 
to its seaports, to the sub-treasuries, land offices, and courts 
of justice in the several States; he can also demand the 
care and protection of the Federal Government over his 
life, liberty, and property, when on the high seas or within 
the jurisdiction of a foreign Government. He also has the 
right to peaceably assemble and petition for redress of 
grievances, and the privilege of the writ of habeas corpus; 
the right to use the navigable waters of the United States; 
to have all rights secured to our citizens by treaties with 
foreign nations, and can by his own volition become a citi- 


230 


CONSTITUTION OF THE UNITED STATES 


zen of any State of the Union by a bona ficle residence 
therein, with the same rights as other citizens of that 
State.” 

It is the abridgment of these other privileges and immu¬ 
nities which might be enumerated, which this clause in the 
Amendment forbids. 

The provision of the first section of the Amendment that 
“no State shall deprive any person of life, liberty, or prop¬ 
erty without due process of law, ’ ’ has practically been con¬ 
sidered under the Fifth Amendment, and a discussion of 
the subject is not deemed necessary here. 

Equal Protection of Laivs. In the closing portion of the 
first Article of the Amendment is the celebrated provision: 

“No State shall deny to any person within its jurisdic¬ 
tion the equal protection of the laws . 9 9 

Mr. Justice Field in Barbier v. Connolly, 11 in commenting 
upon these words, said: 

4 ‘ The Fourteenth Amendment, in declaring that no State 
‘ shall deprive any person of life, liberty, or property with¬ 
out due process of law, nor deny to any person within its 
jurisdiction the equal protection of the laws,’ undoubtedly 
intended not only that there should be no arbitrary depri¬ 
vation of life or liberty, or arbitrary spoliation of property, 
but that equal protection and security should be given to 
all under like circumstances in the enjoyment of their per¬ 
sonal and civil rights; that all persons should be equally 
entitled to pursue their happiness and acquire and enjoy 
property; that they should have like access to the courts 
of the country for the protection of their persons and 
property, the prevention and redress of wrongs, and the 
enforcement of contracts; that no impediment should be 
interposed to the pursuits of any one except as applied 
to the same pursuits by others under like circumstances; 
that no greater burden should be laid upon one than is 
laid upon others in the same calling and condition, and that 
in the administration of criminal justice no different or 
higher punishment should be imposed upon one than such 
as is prescribed to all for like offenses.” 


CONSTITUTION OF THE UNITED STATES 231 

And so it was held in a later case that: 

“The inhibition of the Amendment that no State shall 
deprive any person within its jurisdiction of the equal pro¬ 
tection of the laws was designed to prevent any person or 
class of persons from being singled out as a special sub¬ 
ject for discriminating and hostile legislation.” 12 

The word “person” as used in the Amendment includes 
public or private corporations, whether foreign or domes¬ 
tic: 13 

§147. Analysis of Second Section. “Representatives 
shall be apportioned among the several States according to 
their respective numbers, counting the whole number of 
persons in each State, excluding Indians not taxed. But 
when the right to vote at any election for the choice of Elect¬ 
ors for President and Vice President of the United States, 
Representatives in Congress, the Executive and Judicial 
officers of a State, or the members of the Legislature there¬ 
of, is denied to any of the male inhabitants of such State, 
being twenty-one years of age, and citizens of the United 
States, or in any way abridged, except for participation in 
rebellion, or other crime, the basis of representation therein 
shall be reduced in the proportion which the number of such 
male citizens shall bear to the whole number of male citizens 
twenty-one years of age in such State.” 

Apportionment of Representatives . It will be observed 
that clause 3, section 2, of Article 1, of the original Consti¬ 
tution which provided that in apportionment of representa¬ 
tion, those persons who were slaves should be counted as 
three-fifths of their number is superseded by the first clause 
of this section. 14 

State Poiver to Abridge Suffrage. The section, after pro¬ 
viding how Representatives in Congress shall be appor¬ 
tioned among the States, proceeds with this important 
provision: 

“When the right to vote at any election for the choice 
of Electors for President and Vice President of the United 

12 Pembina Mining Co. v. Pa., 125 U. S. 181, 188. 

13 142 Charlotte, Columbia & Augusta Ry. Co. v. Yibbes, U. S. 386, 391; 
83 F. R. 880, 885. 

14 112 U. S. 94, 102. 


232 


CONSTITUTION OF THE UNITED STATES 


States, Representatives in Congress, the Executive and 
Judicial officers of a State, or the members of the. Legisla¬ 
ture thereof, is denied to any of the male inhabitants of 
such State, being twenty-one years of age, and citizens of 
the United States, or in any way abridged, except for par¬ 
ticipation in rebellion, or other crime, the basis of repre¬ 
sentation therein shall be reduced in the proportion which 
the number of such male citizens shall bear to the whole 
number of male citizens twenty-one years of age in such 
State . 9 ’ 

This provision recognizes that a State has the power to 
abridge the right of suffrage. If a State denies to its 
electors the right to vote at any election for any of the 
enumerated officers in this section, or in any way abridges 
their rights, then the section has prescribed a punishment 
which Congress may inflict upon a State for such denial 
or abridgment. The punishment which has been provided 
is that Congress shall reduce the representation of the 
State in the National House of Representatives in the man¬ 
ner provided in this section. Congress has never exercised 
its power under this clause, although there has always 
been a number of citizens notable for their intelligence and 
patriotism who firmly believe that it should exercise such 
power. 

§ 148. Analysis of Third Section. “No person shall be 
a Senator or Representative in Congress, or elector of Pres¬ 
ident and Vice President, or hold any office, civil or mili¬ 
tary, under the United States, or under any State, who, hav¬ 
ing previously taken an oath, as a member of Congress, or 
as an officer of the United States, or as a member of any 
State Leiglature, or as an executive or judicial officer of 
any State, to support the Constitution of the United States 
shall have engaged in insurrection or rebellion against the 
same, or given aid or comfort to the enemies thereof. But 
Congress may by a vote of two-thirds of each House, 
remove such disability.” 

This section was designed to prevent a person who had 
previously taken an oath as a member of Congress, or as an 
officer of the United States, or as a member of any State 
Legislature, or as an Executive, or Judicial officer, of any 


CONSTITUTION OF THE UNITED STATES 


233 


State, to support tlie Constitution of the United States, who 
subsequently took part in rebellion against the Govern¬ 
ment, from holding any of the positions named in the sec¬ 
tion. It was under this section that Mr. Charles O’Connor 
made a motion in the case of United States v. Jefferson 
Davis, to quash the indictment upon the ground that prior 
to the Civil War and in 1845, Jefferson Davis, the defend¬ 
ant, was a member of the Congress of the United States, 
and as such member had taken an oath to support the Con¬ 
stitution of the United States in the usual manner and as 
required by law in such cases. It was claimed under the 
provision of this Amendment the Government could not 
proceed with the trial of Mr. Davis for treason. 

It was admitted on behalf of the United States at the trial 
that Mr.Davis had been a member of Congress of the United 
States in the year named, that he had taken the oath which 
the members of the Congress usually take,but it was claimed 
that the provision of tlie third clause of the Fourteenth 
Amendment did not bar or estop the Government from pro¬ 
ceeding to try the defendant for treason. The case was 
argued by counsel upon both sides before the United States 
Circuit Court at Richmond, Virginia, Chief Justice Chase 
presiding. The court failed to agree in its opinion, and the 
question was certified for decision to the Supreme Court of 
the United States, but before the case could be heard in 
that Court the general amnesty proclamation issued by the 
President of the United States prevented its consideration 
by the court. Subsequently the indictment against Mr. 
Davis was dismissed by the Government. It appears from 
the record in the ease that Chief Justice Chase was of the 
opinion that the motion to quash the indictment should 
have been sustained, and that further proceedings on the 
part of the Government under the Amendment would have 
been barred. 15 

§ 149. Analysis of Fourth Section. ‘ ‘ The validity of 
the public debt of the United States, authorized by law, 
including debts incurred for payment of pensions and bouu- 

15 Chase’s Decisions, 1, 84, 85, 124. 


234 


CONSTITUTION OF THE UNITED STATES 


ties for services in suppressing insurrection or rebellion, 
shall not be questioned. But neither the United States 
nor any State shall assume or pay any debt or obligation 
incurred in aid of insurrection or rebellion against the 
United States, or any claim for the loss or emancipation 
of any slave; but all such debts, obligations, and claims 
shall be held illegal and void.” 

The object of this section is obvious. Its purpose 
was to put it beyond the power of any one to question the 
validity of the public debt of the United States which had 
been authorized by law, and which includes debts which 
were incurred in the payment of pensions and bounties to 
soldiers in the Union army. The Amendment, after mak¬ 
ing this provision, prohibited either the United States or 
the State from assuming or paying any debt or obligation 
incurred in aid of insurrection or rebellion against the 
United States, and also prohibits the payment of any claim 
for the loss or emancipation of any slave, and then pro¬ 
vides that the payment of such claims shall be held illegal 
and void. 

§ 150. Analysis of Fifth Section. Power of Congress to 
Enforce This Amendment . The last section of the Amend¬ 
ment—and the only one, as has already been noted, which 
was not changed by the Senate when the Amendment first 
came into that body from the House of Representatives— 
provides that “ Congress shall have power to enforce, by 
appropriate legislation, the provisions of this Article.” 

While Congress, perhaps, in the exercise of extraordi¬ 
nary caution inserted this provision, it is questionable if 
it was necessary. Congress would doubtless have had the 
power to enforce the provisions of the Amendment with¬ 
out express authority to do so. In Logan v. United States, 16 
Mr. Justice Gray stated the rule to be: 

“ Every right, created by, arising under or dependent 
upon the Constitution of the United States, may be pro¬ 
tected and enforced by Congress by such means and in such 
manner as Congress, in the exercise of the correlative duty 
of protection, or of the legislative powers conferred upon 

i6 144 U. S. 263, 293. 


CONSTITUTION OF THE UNITED STATES 


235 


it. by the Constitution, may in its discretion deem most 
eligible and best adapted to attain the object.’* 

There is a limitation, however, in the Amendment itself 
upon the power of Congress. The clause of the Amend¬ 
ment under consideration provides that Congress may en¬ 
force the provisions of the Amendment by “appropriate 
legislation”, and the right to judge what is appropriate 
legislation rests with the law-making body of the Govern¬ 
ment, that is, with Congress. 

Mr. Justice Lamar, in United States v. Sanges , 17 said: 

“The provision of the Fourteenth Amendment, author¬ 
izing Congress to enforce its guaranties by legislation, 
means such legislation as is necessary to control and coun¬ 
teract State abridgment.” 

The Supreme Court of the United States has held that 
Congress would have no right to provide for the enforce¬ 
ment of the provisions of this Amendment, in the follow¬ 
ing cases: 

“When the State has been guilty of no violation of its 
provisions; when it has not made or enforced any law 
abridging the privileges or immunities of citizens of the 
United States; when no one of its departments has de¬ 
prived any person of life, liberty, or property, without due 
process of law, or denied to any person within its jurisdic¬ 
tion the equal protection of the laws; when, on the con¬ 
trary, the laws of the State, as enacted by its legislative, 
and construed by its judicial, and administered by its execu¬ 
tive departments, recognize and protect the rights of all 
persons, the Amendment imposes no duty and confers no 
pbwer upon Congress.” 18 

But by implication when a State has been guilty of vio¬ 
lating any of the above provisions, then Congress may 
provide for the enforcement of the provisions of the 
Amendment. 

In Ex parte Virginia , 19 Mr. Justice Strong stated the 
rule to be: 

i7 48 F. E. 78, 87. io 100 U. S. 339, 345, 346. 

is IT. g. v . Harris, 106 U. S. 629, 639. 


236 CONSTITUTION OF THE UNITED STATES 


“ Congress is authorized to enforce the prohibitions by 
appropriate legislation. Some legislation is contemplated 
to make the Amendments fully effective. Whatever legis¬ 
lation is appropriate, that is, adapted to carry out the ob¬ 
jects the Amendments have in view, whatever tends to 
enforce submission to the prohibitions they contain, and 
to secure to all persons the enjoyment of perfect equality 
of civil rights and equal protection of the laws against 
State denial or invasion, if not prohibited, is brought within 
the domain of Congressional power.’’ 

But in the exercise of its power to enforce the Amend¬ 
ment by appropriate legislation Congress could not legis¬ 
late upon a subject wholly within the domain of State 
legislation. 

FIFTEENTH AMENDMENT 

§151. History. “Section 1. The right of citizens of 
the United States to vote shall not be denied or abridged by 
the United States or by any State on account of race, color, 
or previous condition of servitude.” 

“Section 2. The Congress shall have power to enforce 
this article by appropriate legislation.” 

This is the last of the Amendments growing out of the 
Civil War, and the last Amendment which has been made 
to the Constitution. Its ratification was certified by the 
Secretary of State, Mr. Fish, on the 30th of March, 1870. 
If its authorship can be attributed to any one person, that 
person, perhaps, is John B. Henderson, a United States 
Senator from Missouri. 

The Amendment forms an interesting and important 
chapter in the history of the Government from the close 
of the Civil War to the time it was adopted. 

While the debate on the Fourteenth Amendment was in 
progress in the Senate, Senator Henderson introduced the 
following joint resolution: 

“That no State shall deny or abridge the right of its 
citizens to vote or hold office on account of race, color, or 
previous condition. ’ ’ 20 

20 Cong. Globe, 1 Sess., 40 Cong. 1867, 13. 


CONSTITUTION OF THE UNITED STATES 


237 


Several similar resolutions were introduced in the Senate 
about the same time. 

On the 11th of January, 1869, Mr. Boutwell, chairman of 
the judiciary committee of the House reported the follow¬ 
ing joint resolution to that body: 

“The right of any citizen of the United States to vote 
shall not be denied or abridged by the United States, or 
any State by reason of the race, color, or previous condi¬ 
tion of slavery of any citizen or class of citizens of the 
United States. 

“The Congress shall have power to enforce by proper 
legislation the provisions of this article.’’ 

The resolution of Mr. Boutwell passed the House of Rep¬ 
resentatives by a vote of one hundred and fifty yeas to 
forty-two nays, and then went to the Senate. Senator 
Stewart, chairman of the Judiciary Committee of the Sen¬ 
ate, acting under instructions from his committee, moved 
to strike out the House resolution and to insert the 
following: 

“The right of citizens of the United States to vote and 
hold office shall not be denied or abridged by the United 
States, or by any State on account of race, color, or 
previous condition of servitude. ’ ’ 

Senator Wilson of Massachusetts offered the following 
as a substitute for the resolution of Senator Stewart: 

“That no discrimination shall be made in any State 
among the citizens of the United States in the exercise of 
the elective franchise, or in the exercise of the right to 
hold office in any State, on account of race, color, nativity, 
property, education, or religious creed.” 

And this Amendment was adopted by the Senate by a 
vote of thirty-one yeas to twenty-seven nays. 

Senator Morton then presented the following resolution 
to take the place of the Wilson Amendment: 

“Resolved, that clause 2, first section of Article 2 of 
the Constitution of the United States shall be amended 
to read: 'Each State shall appoint, by a vote of the people 


238 


CONSTITUTION OF THE UNITED STATES 


thereof qualified to vote for Representatives in Congress, 
a number of Electors equal to the whole number of Senators 
and Representatives to which the State may be entitled in 
Congress; but no Senator, or Representative, or person 
holding an office of trust or profit under the United States, 
shall be appointed an Elector; and the Congress shall have 
power to prescribe the manner in which such Electors shall 
be chosen by the people/ 99 

And this was adopted. 

The resolution, including the amendment of Senator Mor¬ 
ton, read as follows: 

“No discrimination shall be made in any State among 
the citizens of the United States in the exercise of the 
elective franchise, or in the right to hold office in any State 
on account of race, color, nativity, property, education, or 
creed. Each State shall appoint, by the vote of the people 
thereof qualified to vote for Representatives in Congress, 
a number of Electors equal to the whole number of Sena¬ 
tors and Representatives to which the State may be entitled 
in the Congress; but no Senator or Representative or per¬ 
son holding an office of trust or profit under the United 
States, shall be appointed an Elector; and the Congress 
shall have power to prescribe the manner in which such 
Electors shall be chosen by the people / 9 

The resolution as thus amended went to the House of 
Representatives where that body refused its concurrence 
by a vote of one hundred and thirty-three to thirty-seven, 
and a committee of conference consisting of Messrs. Bout- 
well, Shellabarger, and Eldridge was appointed from the 
House. The Senate, however, did not appoint a Committee 
of Conference, but receded from its resolution, though it 
still refused to agree to the Boutwell resolution. The 
two Houses not being able to agree the Amendment was 
defeated. 21 After the defeat of the resolution had been 
announced in the Senate, Senator Stewart moved that the 
Senate adopt the joint resolution originally presented in 
that body by Senator Henderson. Many Amendments and 
substitutions were offered to Senator Henderson’s resolu- 

2i Thorpe’s Const. History, vol. 3, 437, 439. 


CONSTITUTION' OF THE UNITED STATES 230 

tion, but they were ail defeated and liis original resolution 
passed by a vote of thirty-five to eleven. When the reso¬ 
lution went to the House of Representatives Mr. Bingham 
of Ohio moved that it be amended to read: 

“The right of citizens of the United States to vote and 
hold office should not be abridged or denied by any State 
on account of race, color, nativity, property, creed, or pre¬ 
vious condition of servitude.” 

This Amendment was adopted by the House and the 
Amendment was then returned to the Senate. In that 
body another debate upon it took place, and a conference 
was asked and agreed to. The conferees on the part of 
the Senate were Messrs. Stewart, Conkling, and Edmunds; 
and on the part of the House Messrs. Boutwell, Bingham, 
and Logan. This conference resulted in a compromise, the 
House substantially receding from its Amendment. Then 
the resolution as agreed upon by the conference was passed 
by each body of Congress, and the President was directed 
to send the articles to the governor of each State for rati¬ 
fication. In this way the last of the Amendments growing 
out of the war between the northern and southern sections 
of the Union was passed. 

§ 152. This Amendment Does Not Confer Right of Suf¬ 
frage. In United States v. Reese et al 22 the Supreme Court 
says in construing this Amendment: 

“The Fifteenth Amendment does not confer the right 
of suffrage upon anyone. It prevents the States, or the 
United States, however, from giving preference in this par¬ 
ticular to one citizen of the United States over another on 
account of race, color, or previous condition of servitude. 
Before its adoption, this could be done. It was as much 
within the power of a State to exclude citizens of the 
United States from voting on account of race, etc., as it was 
on account of age, property, or education. Now it is not. 
If citizens of one race having certain qualifications are per¬ 
mitted by law to vote, those of another having the same 
qualifications must be. Previous to this Amendment, there 
was no Constitutional guaranty against this discrimination; 

22 92 U. S. 214, 217. 


240 CONSTITUTION OF THE UNITED STATES 

now there is. It follows that the Amendment has invested 
the citizens of the United States with a new Constitutional 
right which is within the protecting power of Congress. 
That right is exemption from discrimination in the exercise 
of the elective franchise on account of race, color, or pre¬ 
vious condition of servitude. This, under the express pro¬ 
visions of the second section of the Amendment, Congress 
may enforce by ‘appropriate legislation.’ ” 

So it was held in Neal v. Delaware, 23 that the Fifteenth 
Amendment had the effect, in law, to remove from the State 
Constitution, or render inoperative that provision which 
restricts the right of suffrage to the white race. 

23 103 U. S. 370, 389. 


CHAPTER XVII 


POLICE POWER 

§ 153. Attempt to Include Police Power in the Constitu¬ 
tion. The Constitution does not prescribe how far the 
respective States may go in the management of their domes¬ 
tic affairs. When a case comes before the courts they will 
decide whether in that particular case there has been an 
exercise of power by the State which the Constitution does 
not warrant, but they will prescribe no invariable rule on 
the subject. 

In the Convention which framed the Constitution there 
was an attempt made to incorporate into that instrument 
a provision relative to this subject, but it was not success¬ 
ful. In the report of the Committee of the Whole there 
was a provision that: 

“The National Legislature ought to be empowered to 
legislate in all cases to which the separate States are incom¬ 
petent, or in which the harmony of the United States may 
be interrupted by the exercise of individual legislation. ? ’ 

While this provision was being considered by the mem¬ 
bers of the Convention, there were certain objections to it. 
Mr. Sherman of Connecticut, said that to establish a line 
which should divide the powers of the Congress and the 
powers of the States would be exceedingly difficult, and 
no more truthful statement was made in the Convention 
than this. He suggested the following clause, The Na¬ 
tional Legislature—by which he meant Congress—should be 
empowered: 

“To make laws binding on the people of the United 
States in all cases which may concern the common interests 
of the Union; but not to interfere with the Government, of 
the individual States in any matters of internal police which 

i Madison’s Journal of the Convention, 161. 


241 



242 


CONSTITUTION OF THE UNITED STATES 


respect tlie Government of sucli States only, and wlierein 
the general welfare of the United States is not concerned.” 2 

This Amendment which Mr. Sherman proposed contains 
the germ of the whole doctrine of police power in its rela¬ 
tion between the United States and the respective States. 
It was an attempt to prescribe a line of distinction between 
the powers which the United States Government might 
exercise in its relation to the States, and the power which 
the States might exercise in their relation to the General 
Government. 

Mr. Wilson was in favor of this resolution, but Mr. 
Gouverneur Morris was opposed to it, and in the Conven¬ 
tion only two States voted in favor of it while eight voted 
against it. 3 

A resolution was then proposed by Mr. Bedford that Con¬ 
gress should have the power to legislate in all cases for 
the general interests of the Union, and also in those to 
which the States are severally incompetent, or in which 
the harmony of the United States may be interrupted by 
the exercise of individual legislation. 4 Mr. Gouverneur 
Morris was in favor of this resolution, but Mr. Randolph 
strongly opposed it because he said it involved the power 
to violate all the laws and Constitutions of the States, and 
of interfering by the General Government with the States’ 
powers. Notwithstanding Mr. Randolph’s objection it was 
agreed to in the Committee by eight States favoring it and 
two opposing it. Later, in the Convention, Mr. Rutledge, 
to whose committee certain matters had been referred, 
reported that the above resolution should be amended to 
read that Congress be authorized: 

“To provide, as may become necessary, from time to 
time, for the well managing and securing the common 
property and general interests and welfare of the United 
States in such manner as shall not interfere with the Gov¬ 
ernment of individual States, in matters which respect only 
their internal police, or for which their individual authority 
may be competent. ’ ’ 

2 Madison’s Journal, 361. * Madison’s Journal, 362. 

s Madison’s Journal of the Convention, 362. 


CONSTITUTION OP THE UNITED STATES 


243 


The purpose of this Amendment undoubtedly was the same 
in general terms as the resolutions and Amendments which 
had already been offered in the Convention. It was an at¬ 
tempt to insert in the Constitution some authority for the 
establishment of a satisfactory line of distinction between 
the exercise of power by the United States and the States. 
This Amendment, however, failed as did the one which Mr. 
Bedford had proposed, so that the Constitution contains no 
provision on the important subject of “police power .’ 9 

Mr. Jefferson as late as 1823, expressed himself on this 
subject as follows: 

“Can it be believed that under the jealousies prevailing 
against the General Government at the adoption of the 
Constitution, the States meant to surrender the authority 
of preserving order, of enforcing moral duties, and restrain¬ 
ing vice, within their own territory V 9 5 

§154. Definition of Police Power. The word “police” 
is from the Greek word “polis,” which means city. Black- 
stone defined the “public police” to be “the due regu¬ 
lation and domestic order of the kingdom, whereby 
the individuals of the State, like members of a well-gov¬ 
erned family, are bound to conform their general behavior 
to the rules of propriety, good neighborhood, and good man¬ 
ners, and to be decent, industrious, and inoffensive in their 
respective stations.” 6 

This general definition embraces the central idea of what 
is commonly understood as the police power and which in 
the development of the law has become applicable to every 
condition of organized society. 

Chief Justice Shaw, in Commonwealth v. Alger, 7 defines 
the police power in this broad and general language: 

i 6 The police power is that power vested in the legislature 
by the Constitution, to make, ordain, and establish all man¬ 
ner of wholesome and reasonable laws, statutes, and ordi¬ 
nances, either with penalties or without, not repugnant to 

5 Jefferson’s Correspondence, vol. 4, 374. 7 7 Cushing, 85. 

o 4 Blackstone, 362. 


244 


CONSTITUTION OF THE UNITED STATES 


the Constitution, as they shall judge to be for the good and 
welfare of the commonwealth and of the subjects .of the 
same. It is much easier to perceive and realize the existence 
and sources of this power, than to mark its boundaries, or 
prescribe limits to its exercise. There are many cases in 
which such a power is exercised by all well-ordered Govern¬ 
ments, and where its fitness is so obvious, that all well regu¬ 
lated minds will regard it as reasonable. Such are the 
laws to prohibit the use of warehouses for the storage of 
gunpowder near habitations or highways; to restrain the 
height to which wooden buildings may be erected in popu¬ 
lous neighborhoods, and require them to be covered with 
slate or other incombustible material; to prohibit buildings 
from being used for hospitals for contagious diseases, or 
for the carrying on of noxious or offensive trades; to pro¬ 
hibit the raising of a dam, and causing stagnant water to 
spread over meadows, near inhabited villages, thereby rais¬ 
ing noxious exhalations, injurious to health and dangerous 
to life. ? ? 

So again it was defined by Chief Justice Redfield 8 as: 

6 ‘ That police power of a State extending to the protection 
of the lives, limbs, health, comfort, and quiet of all persons 
and the protection of all property within the State. There 
is also the general police power of the State, by which per¬ 
sons and property are subjected to all kinds of restraints 
and burdens, in order to secure the general comfort, health, 
and prosperity of the State. ” 

It was also said by the Supreme Court of Indiana in 
Champer v. City of Greencastle : 9 

“The police power of the State, so far, has not received 
a full and complete definition. It may be said, however, 
to be the right of the State, or State functionary, to pre¬ 
scribe regulations for the good order, peace, health, pro¬ 
tection, comfort, convenience, and morals of the community, 
which do not encroach on a like power vested in Congress 
by the Federal Constitution, or which do not violate any 
of the provisions of the organic law. Of this power it may 
be said, that it is known when and where it begins, but not 
when and where it terminates. ’’ 

8 Thorpe v. Rutland & B. R. Co., 27 Vt. 149-150. 

£) 138 Inch 351. 


CONSTITUTION OF THE UNITED STATES 245 

In this definition we see a recognition of the doctrine 
that a State mnst exercise its police power without en¬ 
croaching on a similar power vested in Congress by the 
Constitution. It is true, as this opinion recognized, that 
while the Constitution contains no provision on the subject 
of police power, the exercise of such power is an inherent 
right of sovereignty, and Congress, as the law-making body 
of the United States, can pass laws embodying the princi¬ 
ples of police power where they are applicable to the 
United States. This w r ould he true in cases where Con¬ 
gress legislates concerning forts, arsenals, etc., or for newly 
acquired territory, or for territories or districts not yet 
organized into States. 

It was held in Commonwealth v. Vrooman, 10 that “the 
police power is inherent in all forms of Government , f 7 that 
“its natural limitations, in the absence of a written Consti¬ 
tution, are found in the situation and necessities of the 
State, and these must he judged of in the first instance by 
the Government itself, ?? and that “it corresponds to the 
right of self-preservation in the individual.” 

When Term First Used in the United States Decisions . 
Mr. Russell in his work on Police Power says: 

‘ ‘ The term appears to have been first used in the United 
States Supreme Court Reports by Mr. Justice Story, who 
says that the police power belongs to the States in virtue 
of their general sovereignty and has never been conceded 
to the United States, and that it extends over all subjects 
within their territorial limits, and includes the power of 
deportation of undesirable persons, and cites Prigg v. Pa. 11 
as his authority.” 

This case was decided in 1842. If this statement is cor¬ 
rect it was more than fifty years before we find the police 
power recognized in the Federal decisions. But Chief 
Justice Marshall, in Gibbons v. Ogden, 12 employed this 
language: 

10 164 Pa. St. 316. 

11 16 Pet. 539, 625; Russell on Police Power 24. 

12 9 Wheat. 208. 


246 CONSTITUTION OF THE UNITED STATES 

4 ‘ The acknowledged power of a State to regulate its police 
and domestic trade, and to govern its own citizens, may 
enable it to legislate on this subject, to a considerable 
extent. ’’ 

This language is unquestionably a recognition of the 
police power of a State, for the great Chief Justice said that 
the power of a State may regulate its police, domestic trade, 
and govern its own citizens, and this decision was made 
almost twenty years before Judge Story wrote his opinion 
in Prigg v. Pennsylvania. 

Judge Story, in his dissenting opinion in the City of 
New York v. Miln, 13 five years before his decision in Prigg 
v. Pennsylvania, referred to the term “police laws.” 

Perhaps it was not until the middle of the nineteenth cen¬ 
tury that the doctrine of “police power” began to receive 
distinct and numerous recognitions by the courts. This 
may be attributed to the fact that the development of 
society and the State, has been along those lines which tend 
to develop laws which were referable to the police power. 

The States never surrendered to the General Government 
the right to regulate their own internal affairs, but as 
already intimated, it was often a grave question whether 
the State Courts and Legislatures did not at times invade 
Federal ground, and in turn, whether the Federal Courts 
and Congress have not invaded State ground upon this sub¬ 
ject, for the line is dim and shadowy in many instances, and 
it should not cause surprise if at times it has seemed diffi¬ 
cult to establish the true doctrine. 

In Lake Shore and Michigan Southern Ry. v. Ohio, 14 four 
Justices of the Supreme Court of the United States held 
that the exercise of a certain power by the State of Ohio 
interfered with the interstate commerce clause of the Con¬ 
stitution, while the other five justices of that court held 
that it did not. Thus we see how close the question often 
is as to what is the true exercise of the police power. 

§155. Federal Recognition of Police Power. Perhaps 
the general doctrine of the police power as considered by 

is 11 Pet, (U. S.) 156. 


14 173 U. S. 285. 


CONSTITUTION OF THE UNITED STATES 247 

tlie Federal judiciary is as broadly stated in Lawton v. 
►Steele, 10 as can be found. In that case it was held: 

“The extent and limits of what is known as the police 
power has been a fruitful subject of discussion in the Appel¬ 
late Courts of nearly every State in the Union. It is uni¬ 
versally conceded to include everything essential to the 
public safety, health, and morals, and to justify the destruc¬ 
tion or abatement, by summary proceedings of whatever 
may be regarded as a public nuisance. Under this power 
it has been held that the State may order the destruction 
of a house falling to decay, or otherwise endangering the 
lives of passers-by; the demolition of such as are in the 
path of a conflagration; the slaughter of diseased cattle; 
the destruction of decayed or unwholesome food; the pro¬ 
hibition of wooden buildings in cities; the regulation of 
railways and other means of public conveyance, and of 
interments in burial grounds; the restriction of objection¬ 
able trades to certain localities; the compulsory vaccination 
of children; the confinement of the insane or those afflicted 
with contagious diseases; the restraint of vagrants, beggars, 
and habitual drunkards; the suppression of obscene publi¬ 
cations and houses of ill fame; and the prohibition of gam¬ 
bling houses and places where intoxicating liquors are sold. 
Beyond this, however, the State may interfere wherever the 
public interests demand it, and in this particular a large 
discretion is necessarily vested in the legislature to deter¬ 
mine, not only what the interests of the public require, but 
what measures are necessary for the protection of such 
interests.” 

Further discussing the question, the opinion proceeds: 

“It must appear, first , that the interests of the public 
generally, as distinguished from those of a particular class 
require such interference; second, that the means are rea¬ 
sonably necessary for the accomplishment of the purpose, 
and not unduly oppressive upon individuals. The legisla¬ 
ture may not, under the guise of protecting the public inter¬ 
ests, arbitrarily interfere with private business, or impose 
unusual and unnecessary restrictions upon lawful occupa¬ 
tions. In other words, its determination as to what is a 
proper exercise of its police powers is not final or conclu¬ 
sive, but is subject to the supervision of the courts. Thus 

15 152 U. S. 133, 136. 


248 


CONSTITUTION OF THE UNITED STATES 


an act requiring the master of a vessel arriving from a for¬ 
eign port to report the name, birthplace, and occupation 
of every passenger, and the owner of such vessel to give a 
bond for every passenger so reported, conditioned to indem¬ 
nify the State against any expense for the support of the 
persons named for four years thereafter, was held by this 
court to be indefensible as an exercise of the police power, 
and to be void as interfering with the right of Congress to 
regulate commerce with foreign nations.’’ 

Limits to State Power. A State cannot, in the exercise of 
its police power, destroy or impair a law of the United 
States. 16 

So in Laurel Hill Cemetery v. City and County of San 
Francisco, 17 it was held by the Supreme Court of the United 
States that an ordinance which prohibited burying the 
dead within the boundaries of a populous city—which ordi¬ 
nance was based upon the determination of the authorities 
of the city that such custom of burial was dangerous to life 
and injurious to the public health, could not be overthrown 
as being an unconstitutional exercise of power of a State. 
And while a State cannot legislate so as to effect interstate 
commerce, yet it may enact legislation in the interests of 
the public safety which will not interfere with interstate 
commerce, and the power to do this lies in the proper exer¬ 
cise of the State’s police power. 

A State in the exercise of its police power cannot compel 
a railroad company at its own expense to put in switches, 
upon the application of the owners of an elevator located 
within a specified limit. 18 But a State may, in the exercise 
of its police power, enact a law requiring those persons 
making sales in bulk of their stock of goods to give notice 
to their creditors, and to prescribe how such notice shall 
be given. 19 But a State law which requires interstate 
trains to stop at junctions is to be construed as a regulation 

ic Flalierty v. Hanson, 215 U. S. 358. 

17 216 U. S. 524, 532. 

is Mo. Pae. Ky. Co. v. State of Neb., 217 U. S. 196, 206; Same v. Same, 
ex rel. Farmers Elevator Co. 

19 Kidd Pater & Price Co. v. Musselman Grocr. Co., 217 U. S. 461, 474. 


CONSTITUTION OF THE UNITED STATES 249 

of commerce, and not a proper exercise of the police power 
of a State. 20 

The doctrine of the extent of the police power of a State 
was recently broadly laid down by Mr. Justice Harlan as 
follows : 

# ‘‘Insurance companies, indeed all corporations, associa¬ 
tions, and individuals, within the jurisdiction of a State are 
subject to such regulations, in respect of their relative rights 
and duties, as the State may, in the exercise of its police 
power, and in harmony with its own and the Federal Con¬ 
stitution, prescribe for public convenience and the general 
good. 21 

The Legislature of New York passed a law which pro¬ 
vided : 

“No employe shall be required or permitted to work in 
a biscuit, bread, or cake bakery, or confectionery establish¬ 
ment more than sixty hours in any one week, or more than 
ten hours in any one day, unless for the purpose of making 
a shorter workday on the last day of the week; nor more 
hours in any one w r eek than will make an average of ten 
hours per day for the number of days during such week in 
which such employe shall work.” 

There was a conviction for violation of this section. The 
conviction was affirmed by the State court but the judg¬ 
ment was reversed by the Supreme Court of the United 
States. Mr. Justice Peckham, delivering the opinion of 
that court, said: 

“When a State, in the assumed exercise of its police 
power, has passed an act which seriously limits the right 
to labor or the right of contract in regard to their means 
of livelihood between persons who are sui juris (both em¬ 
ployer and employe), it becomes of great importance to 
determine which shall prevail—the right of the individual 
to labor for such time as he may choose, or the right of the 
State to prevent the individual from laboring or from enter¬ 
ing into any contract to labor, beyond a certain time pre¬ 
scribed by the State. ... 

“There is no reasonable ground for interfering with the 

20 Herndon v. Chicago, R. I. & P. Ry. Co., 218 U. S. 135, 157. 

2 1 German Alliance Ins. Co. v. Hale, 219 U. S. 307, 317. 


250 


CONSTITUTION OF THE UNITED 


STATES 


liberty of person or the right of free contract, by deter¬ 
mining the hours of labor, in the occupation of a baker. 
There is no contention that bakers as a class are not equal 
in intelligence and capacity to men in other trades or manual 
occupations, or that they are not able to assert their rights 
and care for themselves without the protecting arm of the 
State, interfering with their independence of judgment and 
of action. . . . It is a question of which of two powers or 
rights shall prevail—the power of the State to legislate or 
the right of the individual to liberty of person and freedom 
of contract. . . . We think the limit of the police power has 
been reached and passed in this case. There is, in our judg¬ 
ment, no reasonable foundation for holding this to be neces¬ 
sary or appropriate as a health law to safeguard the public 
health or the health of the individuals who are following the 
trade of a baker. If this statute be valid, and if, therefore, a 
proper case is made out in which to deny the right of an 
individual, sui juris, as employer or employe, to make con¬ 
tracts for the labor of the latter under the protection of 
the provisions of the Federal Constitution, there would seem 
to be no length to which legislation of this nature might not 
go. . . . The real object and purpose of the statute of New 
York was to regulate the hours of labor between the master 
and his employes, all being men, sui juris, in a private busi¬ 
ness, not dangerous in any degree to morals or in any real 
and substantial degree, to the health of the employes. 
Under such circumstances the freedom of master and em¬ 
ploye to contract with each other in relation to their em¬ 
ployment, and in defining the same, can not be prohibited or 
interfered with, without violating the Federal Constitu¬ 
tion.” 22 


In reviewing the general subject of police power the Su¬ 
preme Court of the United States through Mr. Justice Har¬ 
lan in Jacobson v. Massachusetts, 23 said: 

“The States did not surrender what is commonly called 
the police power when becoming members of the Union. 
While the Supreme Court of the United States has always 
refrained from attempting to define the limits of the police 
power, it has, on the other hand, always recognized the 
authority of the States to pass quarantine laws and ‘health 

22 Lochner v. N. Y., 198 U. S. 45. 

23 197 U. S. 11, 25-26-37. 


CONSTITUTION OF THE UNITED STATES 


251 


laws of every description/ and laws that relate to matters 
wholly within their territory, and which do not, by their 
necessary operation, affect the people of other States. It 
is undoubtedly a settled principle that the police power of 
a State embraces such reasonable regulations established 
by legislative enactment as will protect the public health and 
the public safety, and it is equally true that the State may 
invest local bodies existing for purposes of local administra¬ 
tion with authority in some appropriate way to protect the 
public safety, but any local enactment or regulation, though 
based on the acknowledged police powers of the State must 
yield in case it comes in contact with the exercise by the 
General Government of any powder it possesses under the 
Constitution, or with any right which that instrument gives 
or secures. The liberty secured by the Constitution of the 
United States to every person within its jurisdiction does 
not import an absolute right in each person to be, at all 
times and in all circumstances wholly free from restraint, 
for there are manifold restraints to which every person is 
necessarily subject for the common good. On any other 
basis organized society could not exist with safety to its 
members. . . . Society based on the rule that each 

one is a law unto himself would soon be confronted with 
disorder and anarchy. Beal liberty for all could not exist 
under the operation of a principle which recognizes the right 
of each individual person to use his own, whether in respect 
of his person or his property, regardless of the injury that 
may be done to others. It is an established principle Ghat 
persons and property are subjected to all kinds of restraints 
and burdens, in order to secure the general comfort, health, 
and prosperity of the States.’ It was accordingly held that 
it is within the police power of a State to require compulsory 
vaccination of all persons.” 

§156. Proposed Amendments Affecting Police Power. 

Several attempts have been made to amend the Constitu¬ 
tion of the United States so that Congress could regulate 
many subjects which are now peculiarly within the prov¬ 
ince of the States to regulate. Thus, in 1884, an Amend¬ 
ment was proposed to the Constitution under which Con¬ 
gress should have the power to prescribe the number of 
hours, persons who were employed in the manufacture of 
textile fabrics and other industries should labor in a State. 


252 


CONSTITUTION OF THE UNITED STATES 


This Amendment lias been introduced in Congress several 
times, but has always failed of passage. 24 

Amendments have also been proposed in Congress which 
if passed and ratified would enable Congress to control the 
subject of education in the States, notwithstanding the 
Federal Convention positively refused to insert in the Con¬ 
stitution a provision for the establishment of a National 
University. 

In the Convention both Mr. Madison and Mr. Pinckney 
offered a resolution 4 ‘that Congress have the power to 
establish a university in which no preference or distinction 
should be allowed on account of religion”, but the resolu¬ 
tion was defeated. 25 

The great questions which for some years have agitated 
the public mind along the line of the reserve powers of the 
State have grown out of those powers which have gener¬ 
ally been exercised by Congress and the States under the 
police power. As has been stated, no general rule has ever 
been established, either by the Federal or State courts, 
which places a final limit upon the power which the Gen¬ 
eral Government or the States under this doctrine can 
exercise. From the very nature and constituent elements 
of our Government such a rule never can be established. 
If Congress should have the power to invade the reserve 
powers of the States and establish rules as to education, 
as to the manufacture of certain articles, as to the regula¬ 
tion of the farm and the gathering of the crops, the power 
of the State is gone, and all is merged into the great cen¬ 
tralized power of the General Government. The power of 
Congress must go wherever the Constitution permits it to 
go, and the power of the State must go to the Government 
and regulation of all those powers not surrendered by the 
States to the General Government, but the power of Con¬ 
gress and the power of the States must only go where the 
Constitution will permit. The determination of the ques¬ 
tion growing out of the relation of the States to the 

24 Ames, Amendments, 273. 

25 Madison’s Journal of the Convention, 726. 


CONSTITUTION OF THE UNITED STATES 253 

General Government will require the attention of the court 
as long as the Government and the State exists. Society 
is so constructed that it rapidly changes, and the changes 
present new questions for the courts to solve. It is for this 
reason the courts have so often held that no general rule 
can be established for the solution of these questions, but 
that each case must be determined upon its own merits 
when it is heard. 

§ 157. Federal Authority for the Exercise of Police 

Power. The authority of Congress to enact legislation 
involving the exercise of the police power is derived largely 
from the express powers conferred upon that body by the 
Constitution. Some of these powers amount almost to con¬ 
ferring definite authority upon Congress to pass such legis¬ 
lation. The power which Congress has to regulate com¬ 
merce is an illustration. 4 ‘To regulate’’ involves the exer¬ 
cise of other powers, namely, that, in certain cases, of sup¬ 
pressing, in others of preventing or prohibiting, certain 
traffic or kinds of business. Thus in the Lottery case 26 it 
was said: 

“That regulation may sometimes appropriately assume 
the form of prohibition, as illustrated by the case of dis¬ 
eased cattle transported from one State to another. Such 
cattle may have, notwithstanding their condition, a value in 
money for some purposes, and yet it cannot be doubted that 
Congress, under its power to regulate commerce, may either 
provide for their being inspected before transportation 
begins, or in its discretion may prohibit their being trans- 
joorted from one State to another. ’ ’ 

In an earlier case it was held that regulation sometimes 
takes the form or has the effect of prohibition. 27 So the 
authority which Congress has “to regulate” commerce with 
the Indian tribes vested that body with the authority to 
legislate along lines involving an exercise of the police 
powers. In U. S. v. Holliday, 28 it was held that an Act of 
Congress which made it a penal offense to sell liquor to the 
Indians, though sold without an Indian reservation, and 

20 188 U. S. 321, 3 58 . 28 3 Wallace 407-418. 

27 in re Rahrer; 140 U. S. 545. 


25 4 


CONSTITUTION OF THE UNITED STATES 


within the territorial limits of a State, was subject to the 
regulations of Congress under the clause conferring upon 
that body power to regulate commerce with the Indians, 
and in U. S. v. 43 Gallons of Whisky, 29 Mr. Justice Davis, 
speaking for the entire court, said: 

“As long as these Indians remain a distinct people, with 
an existing tribal organization, recognized by the political 
department of the Government, Congress has the power to 
say with whom, and on what terms, they shall deal, and 
what articles shall be counterband. If liquor is injurious to 
them inside of a reservation, it is equally so outside of it; 
and why cannot Congress forbid its introduction into a 
place nearby, which they would be likely to frequent. . . . 
If Congress has the power, as we have decided it to have, 
to punish the sale of liquor anywhere to an individual mem¬ 
ber of an Indian tribe, why can not it also subject to for¬ 
feiture liquor introduced for an unlawful purpose, into ter¬ 
ritory in proximity to that where the Indians live! There 
is no reason for the distinction.” 

29 93 U. S. 188, 195. 


EXAMINATION PAPER 


























CONSTITUTION OF THE 
UNITED STATES 

PART III 


Read Carefully: Place your name and full address at the head of the 
paper. Any cheap, light paper like the sample previously sent you may be 
used. Do not crowd your work, but arrange it neatly and legibly. Do not 
copy the answers from the Instruction Paper; use your own words, so that we 
may he sure you understand the subject. 


1. What caused the adoption of the eleventh amendment? 

2. To what does this amendment relate? 

3. What was the origin of the twelfth amendment? 

4. How are presidential electors elected? How many is 
each State entitled to? 

5. How long was it after the adoption of the twelfth amend¬ 
ment till the thirteenth was adopted? 

6. To what cause can the thirteenth, fourteenth, and fifteenth 
amendments be attributed? 

7. What did the thirteenth amendment accomplish? When 
was the ratification of this amendment announced? 

8. What criticisms, if any, have been made upon the opinion 
of a majority of the court in the Slaughter House cases? 

9. What justices of the Supreme Court dissented from the 
majority opinion in the Slaughter House cases? 

10. What led to the adoption of the fourteenth amendment? 

11. Was the amendment, after it passed the House of Repre¬ 
sentatives, changed in the Senate? If so, to what extent? 

12. What is the relative importance of this amendment as 
compared with the other amendments? 

13. How is citizenship acquired? Is there a citizenship of 
the United States and also a citizenship of a State? 

14. Give an analysis of the first, second, third, and fourth 
sections of the fourteenth amendment. 




CONSTITUTION OF THE UNITED STATES 


15. How can Congress enforce the provisions of the fourteenth 
amendment? 

16. What was accomplished by the passage of the fifteenth 
amendment? 

17. Did the fifteenth amendment confer the right of suffrage 
upon any class of persons? To what extent did it restrict state 
constitutions respecting the right of suffrage? 

18. State the origin of the word “police”. What is meant by 
this term? When was the term first used in the Federal reports? 

19. When did the courts begin to recognize the doctrine of 
police power? Did the States surrender their police powers to the 
general government upon the adoption of the Federal constitution, 
or did they retain them? 

20. Does the constitution contain any express provision 
respecting the police power? 

21. What is the extent of the Federal police power? Give 
some illustrations of this power. 

22. State some of the limitations of the use of police power by 
the States. 

23. Have there been any attempts to amend the Constitution 
so Congress could more freely exercise the police power? From 
what part of the Constitution does Congress derive this pow T er? 

After completing the work add and sign the following statement: 

I hereby certify that the above work is entirely my own. 

(Signed) 




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